Your tenant has stopped paying: recover the flat and the debt
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You bring a single claim for eviction for non-payment together with the unpaid rent, heard as a juicio verbal (the shorter form of civil proceedings). Since April 2025 you must first attempt a negotiated settlement, which is an admissibility requirement. If you made a formal demand for payment thirty days before filing, the tenant can no longer stop the eviction by paying. Rent claims lapse after five years.
You let a flat for 950 euros a month. The tenant paid normally for two years and stopped in March. Four months are now unpaid, almost 3,800 euros, and he answers your messages promising to catch up but never does. You keep paying the service charge, the insurance and the property tax on a home that brings in nothing. You want both things at once: the flat back and the money owed, without the tenant paying at the last minute and staying put.
The case, in five lines
- What is brought
- A claim for eviction for non-payment, joined with a claim for the unpaid rent and other sums due, heard as a juicio verbal.
- Before which court
- The Civil section of the Tribunal de Instancia (the first-instance court) for the place where the let property is located.
- Deadline
- Eviction can be sought for as long as the default lasts, with no lapse period. Rent claims lapse after five years, and each monthly instalment runs on its own.
- Who can bring it
- The owner, the usufructuary or any other person entitled to possess the let property. If the flat is jointly owned, all co-owners bring the claim.
- Financial risk
- If the tenant cures the default and you had not sent a formal demand, he stays and you bear your own cost. If he leaves or fails to appear, the decree closing the case orders him to pay costs and the rent accrued after filing.
The eviction and the arrears go in the same claim
Article 250.1.1 of the Civil Procedure Act sends to the juicio verbal, whatever the amount at stake, both the claim for unpaid rent and the claim by which the owner, the usufructuary or any other person entitled to possess the property recovers possession because of that default. They are two separate claims and the law allows them to be joined, so that a single action gives you back the flat and establishes the debt.
Joining them matters. If you only ask for possession, you get the flat back but obtain no order for the unpaid months and would have to claim them later in separate proceedings. If you only claim the money, the tenant stays and the debt keeps growing. Article 438.5 expressly contemplates the eviction claim for non-payment with or without the money claim joined to it, and the joined version is the one that closes the whole problem.
A formal demand thirty days before filing blocks the tenant's cure
Article 22.4 of the Civil Procedure Act lets the tenant end the eviction by paying the claimant, or placing at his disposal in court or through a notary, the sum claimed plus whatever is owed at that moment. This is the enervación, the tenant's cure, and it leaves the landlord with an occupied flat and a live tenancy. The same article says when that door is shut, and one of the two grounds depends entirely on you.
There is no cure if the landlord formally demanded payment by any verifiable means at least thirty days before the claim was filed and payment had still not been made when it was filed. Nor is there a cure if the tenant already used it once before, unless the money went uncollected for reasons attributable to the landlord. A burofax with proof of delivery and certified content, sent in time, changes the outcome of the case.
Since April 2025 you must attempt a settlement before filing
Article 5 of Organic Act 1/2025 requires, as a condition of admissibility in civil matters, that you first resort to an appropriate dispute resolution method, with identity between the subject of the negotiation and the subject of the litigation. The requirement is met by mediation, by conciliation, by the neutral opinion of an independent expert, by a confidential binding offer or by any other negotiating activity recognised in law.
The provision itself specifies that the requirement is met where the negotiating activity is carried out directly by the parties, or between their lawyers under their instructions and with their agreement. In practice the demand for payment that you should be sending anyway also becomes the document proving the attempt. Eviction for non-payment is not among the matters excepted in paragraph 2 of that article, so without that attempt the claim is not admitted.
The court's demand gives the tenant ten days and three ways out
Once the claim is admitted and before the hearing, the court clerk requires the defendant, within ten days, to vacate the property, pay the claimant, cure the default by making the full sum available, or appear and oppose, briefly stating why he considers the sum is not owed. That same demand already fixes the day and time of any hearing and the exact day and time of the eviction if there is no opposition.
If the defendant neither answers the demand for payment nor appears to oppose or admit the claim, the clerk issues a decree closing the eviction case and the eviction is carried out on the day and time fixed, with no further notice needed. That decree orders the defendant to pay costs and includes the rent accrued after the claim was filed until the property is actually handed over, calculated on the last monthly sum claimed.
Rent claims lapse after five years and waiting has a price
Article 1966 of the Civil Code sets a five-year lapse period for the action to claim the price of leases, whether of rural or urban property, and likewise for any other payments due yearly or at shorter intervals. Each monthly instalment has its own count, so a landlord who lets time run loses the oldest instalments one by one while keeping the recent ones.
To that cost you must add the one you do not see. While the tenancy is alive the flat cannot be let to anyone else, the service charge and the utilities keep accruing, and the deterioration of the property is recorded nowhere. That is why the first thing we do is fix the exact debt as of today and decide within the same week whether to serve a formal demand or go straight to court.
How we run the case, step by step
- 1
Fix the debt and review the tenancy
We work out month by month what is unpaid using the bank statements, check the agreed rent, the sums treated as rent and the deposit lodged, and verify who appears as landlord so that all co-owners sue together and no objection on standing can be raised.
- 2
Formal demand for payment
We send a burofax with proof of delivery and certified content claiming the exact sum and warning of court action. It goes out more than thirty days before the claim is filed, precisely so that the tenant cannot later stop the eviction by paying up.
- 3
Prior attempt at a settlement
We document the negotiating activity required by article 5 of Organic Act 1/2025: a concrete proposal for payment or for voluntary handover of the keys, with identity between what is negotiated and what is later claimed. Without that evidence the claim is not admitted.
- 4
Joined claim for eviction and arrears
We file a single claim seeking termination of the tenancy with recovery of possession and an order to pay what is owed, including the rent accruing until the property is actually handed over, and we ask for the day and time of the eviction to be fixed from the outset.
- 5
Court demand, hearing and eviction
We watch the defendant's response within the ten days. If he opposes, we defend the debt at the hearing with the documentary evidence. If he does not, the decree closes the case and we attend the scheduled eviction to take possession of the property.
- 6
Enforcement of the money judgment
Once the flat is recovered we enforce the sum awarded: asset tracing, attachment of bank balances, of salary and of tax refunds, and application of the lodged deposit against any damage recorded in the report drawn up at the eviction.
The evidence that decides the case
- The signed tenancy agreement, showing the agreed rent, the start date and the sums treated as rent.
- The bank statements showing the last month collected and the clean stop in incoming payments.
- The burofax demand with its proof of delivery and certified content, with the sending date clearly shown.
- The month-by-month calculation of the debt up to the date the claim is filed, itemising each unpaid instalment.
- Documentary proof of the prior attempt at a settlement, with the proposal sent and the reply or the silence.
- The service charge, insurance and property tax receipts you have gone on paying throughout the default.
What closes the door
- Filing without having demanded payment thirty days in advance. The tenant keeps the right to cure, pays at the last moment and stays in the flat with the tenancy intact.
- Accepting a partial payment after the demand without recording that it is applied to the oldest instalments and that the claim remains alive.
- Asking only for possession and leaving the debt out of the claim, which forces a second set of proceedings for the money when the tenant can no longer be found.
- Letting the five years run while trusting promises to pay. Every month that passes, the oldest instalment in the claim is lost to the lapse period.
- Changing the lock or cutting off the utilities. It is self-help that the tenant will use against you and that can have criminal consequences for the landlord.
The law that applies
- Art. 250.1.1.º LEC. Sends to the juicio verbal, whatever the amount, both the claim for unpaid rent and the claim by which the owner, usufructuary or any person entitled to possess the let property recovers possession because of that default. BOE-A-2000-323
- Art. 438.5 LEC. Requires the court clerk to call on the defendant within ten days to vacate, pay, cure or oppose, fixing the hearing and the eviction in advance; if he neither answers nor appears, the decree closes the case, orders him to pay costs and includes the rent accrued after filing. BOE-A-2000-323
- Art. 22.4 LEC. Allows the eviction to end if the tenant pays or deposits the sum claimed plus what is then owed, but rules the cure out where he has already used it once or where the landlord made a verifiable demand for payment thirty days before filing. BOE-A-2000-323
- Art. 5 LO 1/2025. Makes prior resort to an appropriate dispute resolution method a condition of admissibility in civil matters, met also by direct negotiation between the parties or their lawyers, and lists the excepted matters, which do not include eviction for non-payment. BOE-A-2025-76
- Art. 1966 CC. Sets at five years the lapse period for the action claiming the price of leases of rural or urban property and for any other payments due yearly or at shorter intervals. BOE-A-1889-4763
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
If my tenant pays everything when the claim arrives, does he stay in the flat?
It depends on what you did beforehand. Article 22.4 of the Civil Procedure Act lets a tenant cure the default by paying or depositing the sum claimed and whatever is then owed, but rules that out where the landlord made a verifiable demand for payment at least thirty days before filing and payment was not made. It is also ruled out if the tenant already used the cure once before.
Can I also claim the rent that accrues while the case is running?
Yes. Article 438.5 of the Civil Procedure Act provides that the decree closing the eviction case includes the rent accrued after the claim was filed and up to the actual handover of the property, using as the basis of calculation the last monthly sum claimed when the case was filed. It is best to ask for this expressly in the prayer for relief.
Do I have to attempt a settlement before bringing the eviction claim?
Yes. Article 5 of Organic Act 1/2025 requires, as a general rule in civil matters, prior resort to an appropriate dispute resolution method, and eviction for non-payment is not among the matters excepted in its paragraph 2. A serious, documented negotiating effort is enough, and the law itself accepts that it may be carried out directly between the parties or between their lawyers.
How long do I have to claim the unpaid monthly instalments?
Five years, under article 1966 of the Civil Code, which applies that period to the action claiming the price of leases of rural or urban property. Time runs separately for each monthly instalment from the date it fell due, so someone who waits does not lose the whole debt at once but loses the oldest instalment with every month that passes.
What if the tenant leaves the flat but pays nothing?
Article 438.5 covers that situation: if the defendant vacates without opposing or paying, the clerk issues a decree closing the case and passes the matter to the claimant so that enforcement of the sum claimed can be sought, for which a simple application suffices. It is worth keeping the eviction appointment so that a report is drawn up on the state in which the property is left.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.