Eviction Trial

The procedural scheme of the verbal trial for non-payment is only suitable for extraordinarily simple matters of easy legal determination, where only the existence of the rental contract and the non-payment of the rent or rent under the agreed conditions must be accredited, so that the tenant can only oppose the proof of payment. article.444.1 LEC.

The eviction action should only prosper on the basis of a real, enforceable and undisputed debt because the current rent is known beforehand and clearly; it is not admissible for the lessor to directly exercise the eviction action without first having obtained a judicial pronouncement of determination of the rent in the event that it is not.

Issues such as the following do not arise in these proceedings:

• Those referring to ownership or possession.
• A ruling on the amount owed.
• Repercussion on the lessee of the amount of works carried out on the property at the request of the Municipal Authority.
• Mora accipiendi.
• Determination of the amount of rent.
• Nature of the contract.
• Disputes relating to the expiry of the contractual term.
• Eviction can be sought for non-payment of items other than rent.
• Complex relationships, with obligations exceeding those deriving from the lease.
• Lease with an option to purchase the leased property.

In relation to industrial leases, the majority doctrine and the doctrine of the courts are inclined to exclude this possibility of preserving the action for eviction proceedings, and this because they consider that its application should be limited to leases included in the scope of application of the Urban Leases Act, since, as the aforementioned regulation grants the tenant an additional possibility to comply with its main obligation, which is the late payment of rent, it is understood that it should be interpreted as a "numerus clausus" regulation, so that its simple reading implied the exclusion indicated, as it is understood that it should be interpreted as a "numerus clausus" regulation, It is understood that it should be interpreted as a "numerus clausus" regulation, in such a way that its simple reading implies the aforementioned exclusion, insofar as it is understood that the possibility of enervation does not cease to be an exception to the general consequence of non-fulfilment by a contracting party of the first obligation incumbent on him.

In the same way, it is held that the possibility of enervation is barred as the industrial lease is a complex lease, in which one of the elements that make it up is the urban property, but not the only one, nor the main one, but a patrimonial unit with its own life, so that the different elements that make it up cannot have a different legal regime, as it is understood that the eviction of the premises and the continuation with the lease of the other elements of the industry is not possible.

On the contrary, the SAP Valencia of 26 March 2003 states that the eviction trial is also applicable to leases excluded from the Urban Leases Act.

In the same sense, the SAP Las Palmas of 16 September 2004 states that the new text of the LEC extends the scope of the leases to which the previous LEC referred, as it refers to the eviction of urban property, in general, without making the distinctions that were contained in the old text. It is true that the Law of Rites does not give a clear concept of what should be understood by urban property and that it is not included in the Law of Urban Leases of 1994, which limits itself to distinguishing between leases of urban properties that are destined for housing or for uses other than housing.

Concluding that, in accordance with article 22.4 LEC, the enervation of the eviction action will always be possible in the case of urban properties, including in this concept, and as indicated, the lease of the industrial property that is the object of the present proceedings, as this, without major intellectual difficulties, can be included within the notion of urban property to which reference has been made.

Claim for eviction - Procedure

The procedure in eviction proceedings is regulated in the Civil Procedure Act.

Admission and transfer of the brief claim and summons for hearing.

1. The court clerk, having examined the claim, shall admit it or shall report on it to the Court so that it may decide what is appropriate in accordance with the provisions of Art. 404. Once the application has been admitted, the court clerk shall summon the parties to the hearing on the day and at the time he shall set for that purpose, which shall be at least ten days from the day following the summons and may not exceed twenty days. In the summons it shall be stated that the hearing shall not be suspended for non-attendance of the defendant and the litigants shall be warned that they must attend with the means of proof they intend to use, with the prevention that if they do not attend and if their statement is proposed and admitted, the facts of the interrogation may be considered admitted in accordance with the provisions of Article 304. The plaintiff and defendant shall also be warned of the provisions of section 442 in the event that they do not appear at the hearing. The summons shall also indicate to the parties that, within three days of receipt of the summons, they must indicate the persons who, because they cannot produce them themselves, are to be summoned by the court clerk to the hearing to testify as parties or witnesses. To this end, they shall provide all the information and circumstances necessary to carry out the summons. Within the same period of three days, the parties may request written answers from legal persons or public bodies, in accordance with the procedures established in article 381 of this Law.
2. In the cases of number 7 of section 1 of Article 250, in the summons for the hearing, the defendant shall be warned that, if he does not appear, a judgement shall be issued ordering the actions that, for the effectiveness of the registered right, the plaintiff has requested. The defendant shall also be warned, where appropriate, that the same judgement shall be issued if he appears at the hearing, but does not provide security, in the amount that, after hearing him, the court shall determine, within the amount requested by the plaintiff.
3. In cases of eviction proceedings for non-payment of rent or sums due, it shall be indicated, where appropriate, in the summons for the hearing, the possibility of preserving the eviction in accordance with the provisions of section 4 of Art. 22 of this Law, as well as, if the plaintiff has expressed in his claim that he assumes the commitment referred to in section 3 of art. 437, that the acceptance of this commitment will be equivalent to an acceptance with the effects of art. 21, to which end a period of five days will be granted to the defendant to state whether he accepts the request. In all cases of eviction, the defendant will also be warned in the summons that, if he does not appear at the hearing, the eviction will be declared without further formalities and that he is summoned to receive notification of the judgement on the sixth day following the day appointed for the hearing. Likewise, the decision of admission will set a date and time for the eviction to take place, if applicable, which must take place within one month of the date of the hearing, warning the defendant that, in the event that the judgement is condemnatory and is not appealed, the eviction will be carried out on the date set, without the need for further notification.

Pre-hearing proceedings in special cases

1. Once the application has been filed in the case of number 3 of section 1 of Article 250, the court clerk shall call the witnesses proposed by the claimant and, according to their statements, the Court shall issue an order in which it shall deny or grant, without prejudice to better rights, the possession requested, taking such steps as it deems appropriate for this purpose. The order shall be published by edicts, which shall be inserted in a visible place at the seat of the Court in the "Official Gazette" of the province and in one of the newspapers with the largest circulation in the province, at the expense of the claimant, urging the interested parties to appear and claim, within forty days, if they consider that they have a better right than the claimant. If no one appears, the claimant shall be confirmed in possession; but in the event that claimants appear, the clerk of the court shall summon them, with all those who appear, to the hearing, and thereafter the proceedings shall be conducted in the manner provided for in the following Articles.
2. If the application seeks a summary judicial order for the suspension of a new construction, the court, even before the summons to the hearing, shall issue an immediate suspension order to the owner or person in charge of the construction, who may offer security for the continuation of the construction, as well as for the performance of the work necessary to preserve what has already been built. The court may order a judicial, expert or joint survey to be carried out before the hearing. The surety may be provided in the manner provided for in the second paragraph of section 64, subsection 2 of this Act.
3. In the cases of section 250, subsection 1, no. 7, as soon as the application is admitted, the court shall adopt the measures requested which, according to the circumstances, are necessary to ensure compliance with the judgement that has been handed down.
4. In the case of number 10 of section 1 of Article 250, once the claim has been admitted, the Court shall order that the assets be shown to their possessor, under penalty of incurring disobedience to the judicial authority, and their immediate seizure, which shall be secured by means of a deposit, in accordance with the provisions of this Act. When, under the protection of the provisions of number 11 of section 1 of Article 250, actions are brought based on the breach of a financial lease contract or hire-purchase contract with reservation of title, once the claim has been admitted, the Court shall order the deposit of the property whose delivery is claimed. No security shall be required of the plaintiff for the adoption of these precautionary measures, nor shall the defendant's opposition to them be admissible. Nor shall applications for modification or replacement of the measures by security be admissible. In addition to the provisions of the preceding paragraph, the clerk of the court shall summon the defendant for five days to appear in the proceedings, through a solicitor, in order to announce his opposition to the claim on any of the grounds provided for in section 3 of Article 444. If the defendant allows the time limit to elapse without announcing his opposition, or if he intends to base his opposition on grounds not included in section 3 of Article 444, a judgment upholding the plaintiff's claims shall be issued without further formality. Where the defendant announces his opposition to the claim in accordance with the provisions of the preceding paragraph, the clerk of the court shall summon the parties to the hearing and, if the defendant does not attend the hearing without just cause or attends but does not lodge opposition or intends to base his opposition on a ground not included in section 3 of Article 444, a judgement upholding the plaintiff's claims shall be issued without further formality. In such cases, the defendant shall also be liable to a fine of up to one fifth of the value of the claim, with a minimum of one hundred and eighty euros. No appeal shall lie from the judgement rendered in the cases of absence of opposition referred to in the two preceding paragraphs.

Non-attendance of the parties at the hearing

1. If the plaintiff does not attend the hearing, and the defendant does not allege a legitimate interest in the continuation of the proceedings in order for a judgment to be given on the merits, he shall be deemed to have withdrawn his claim, shall be ordered to pay the costs incurred and shall be ordered to pay compensation to the defendant who has appeared, if the latter so requests and proves the damages suffered.
2. A defendant who fails to appear shall be declared in default and, without being summoned again, the trial shall continue.

Hearing development

1. The hearing will begin with a statement by the plaintiff of the grounds of what he is claiming or ratification of those set out in the claim if the latter has been formulated in accordance with the provisions of the ordinary trial.
2. The defendant may then make such submissions as he deems appropriate, beginning, where appropriate, with questions relating to the joinder of actions that he considers inadmissible, as well as any other fact or circumstance that may hinder the valid continuation and conclusion of the proceedings by way of a judgment on the merits. The defendant may not at this stage contest the lack of jurisdiction or competence of the court, which he must propose in the form of declinatory action in accordance with the provisions of Article 64 of this Law, without prejudice to the provisions on the court's ex officio assessment of his lack of jurisdiction or competence.
3. Having heard the plaintiff on the questions referred to in the previous section, as well as those that he considers necessary to propose regarding the personality and representation of the defendant, the court shall decide what is appropriate and if it orders the trial to continue, the defendant may request that his disagreement be recorded in the minutes, for the purposes of appealing against the final judgement.
4. If the procedural issues referred to in the previous paragraphs are not raised or if, if they are raised, the court decides to continue the trial, the parties shall be given the floor to clearly state the relevant facts on which they base their claims. If there is no agreement on them, the evidence shall be proposed and, once it has been admitted, that which is not impertinent or useless shall then be taken. The parties' offer of evidence may be supplemented in accordance with the provisions of section 429(1).

Special rules on hearing content

1. When in the verbal trial the recovery of property, rustic or urban, given in lease, for non-payment of the rent or similar amount is sought, the defendant will only be allowed to allege and prove the payment or the circumstances relating to the origin of the enervation See art. 250.1 of the present Law.
2. In the cases of number 7 of section 1 of Article 250, the defendant may only oppose the claim if, where appropriate, he provides the security determined by the court in any of the forms provided for in the second paragraph of section 2 of Article 64 of this Act. The defendant's opposition may only be based on one of the following grounds:
   1. Falsity of the certification of the Register or omission therein of registered rights or conditions, which distort the action brought.
   2. The defendant possesses the property or enjoys the disputed right by contract or any other direct legal relationship with the last owner or with previous owners or by virtue of prescription, provided that this should prejudice the registered owner.
   3. That the property or the right is registered in favour of the defendant and that this is justified by presenting a certificate from the Land Registry accrediting the validity of the registration.
   4. The registered property is not the one actually owned by the defendant.
3. In the cases of Art. 250 (1) (10) and (11), the defendant's objection may only be based on one of the following grounds:
   1. Lack of jurisdiction or lack of competence of the court.
   2. Documentary proof of payment.
   3. Inexistence or invalidity of his consent, including the falsity of the signature.
   4. Falsity of the document in which the contract is formalised.

Evidence and presumptions in oral proceedings

In matters of evidence and presumptions, the provisions of Chapters V and VI of Title I of this Book shall apply to oral proceedings. See arts. 281 to 298 and 299 to 386 of this Law.

Rulings on evidence and appeals

Against the decisions of the court on the inadmissibility of evidence or on the admission of evidence that is alleged to have been obtained in violation of fundamental rights, the parties may lodge a protest in order to assert their rights in the second instance.

Judgment. Absence of res judicata in special cases

1. Once the evidence has been heard if it has been proposed and admitted, or if not, the arguments of the parties have been presented, the hearing will be closed and the Court will issue a judgement within the following 10 days. With the exception of oral trials in which eviction from urban property is requested, in which the judgement will be issued within the following five days, the parties being summoned at the hearing to the seat of the Court to receive the notification, which will take place on the closest possible day within the five days following the day of the judgement. Without prejudice to the foregoing, in the sentences of condemnation for acceptance referred to in sections 437(3) and 440, in the event that the tenant does not carry out voluntary eviction within the period indicated, a date and time shall be set for the direct eviction of the defendant, which shall be carried out without the need for further formalities within a period of no more than 15 days from the end of the voluntary period. In the same way, in the case of sentences of condemnation for non-appearance of the defendant, the launch will be carried out on the date set without any further formalities.
2. Judgments that put an end to oral trials on summary protection of possession shall not produce the effects of res judicata, nor shall those that decide on the claim for eviction or recovery of a property, whether rural or urban, given in lease, due to non-payment of rent or rent or due to legal or contractual expiry of the term, and on other claims for protection that this Law classifies as summary.
3. Judgments handed down in oral proceedings in which the effectiveness of registered rights in rem is sought against those who oppose or disturb the exercise thereof, without having registered title, shall also lack the effects of res judicata.
4. Nor shall judgments which, in specific cases, are denied such effects by law, have the effect of res judicata.