The tenant is not paying: how to get your property back and how long it takes

Before suing: the demand for payment

It is not compulsory, but highly advisable, to send the tenant a formal demand for payment (usually a burofax with certified content and acknowledgement of receipt). It serves two purposes: it records the debt and the date, and it prevents the tenant from curing the eviction.

Curing (article 22.4 of the Civil Procedure Act) allows the tenant to stop the eviction by paying everything owed before the hearing. They can only do it once, and they cannot do it if the landlord demanded payment at least thirty days before filing the claim and they did not pay.

The eviction claim and the rent claim

Eviction for non-payment goes through the fast-track verbal procedure (article 250.1.1 of the Civil Procedure Act). Two things can be combined in the same claim: recovery of the property and a claim for unpaid rent and other sums (utilities, for example). That is the usual approach and avoids a second lawsuit.

Since Housing Act 12/2023, the claim must also state whether the property is the tenant's habitual residence, whether the landlord is a large holder and, if so, whether the tenant is in a situation of economic vulnerability, with the prior steps the law requires in those cases. Omitting this information is grounds for the claim being rejected and means losing weeks.

What happens after the claim is filed

• The court admits the claim and orders the tenant to vacate, pay or oppose within ten days. That same order already sets a date for the hearing and for the eviction, in case there is no opposition.
• If the tenant does nothing, there is no trial: the court issues an order closing the procedure and the eviction date stands.
• If they oppose, a hearing is held and the judge gives judgment. Grounds for opposing an eviction for non-payment are very limited: essentially, proving payment or that curing applies.
• With the final order or judgment, the eviction is enforced: the court officers attend the property and hand it over to the landlord.

How long it takes in Málaga

It depends on which court is assigned and its workload, and it would be reckless to promise an exact figure. As a guide, in the courts of Málaga city an unopposed eviction is usually resolved in several months, and with opposition or complications it can approach a year. If the tenant is in a proven situation of vulnerability, suspensions of the eviction may apply and extend the timeline.

What is within the landlord's control is not wasting time: send the demand as soon as possible, file a complete claim the first time and have the documentation ready.

Common mistakes that drag the procedure out

• Accepting partial payments without making clear in writing that they do not waive the debt or the eviction.
• Having no written contract, or one without the tenant's identification details.
• Changing the locks or cutting off utilities on your own. Besides not helping you recover the property, it may constitute the criminal offence of coercion.
• Filing the claim without the information and steps required by the Housing Act.

Documents for the first consultation

• The lease and any annexes.
• Evidence of the unpaid rent and of what was paid (bank statements).
• Any burofax or demand sent, with its acknowledgement.
• The Land Registry extract for the property and, where relevant, how many properties the landlord owns (to establish whether they are a large holder).