Services / Civil and commercial litigation
Rent unpaid: ending a lease and eviction
Most eviction cases are lost not on the facts but on the notice, because the statute prescribes how a lease is ended and skipping a step leaves the termination ineffective, so the whole process has to begin again.
The form of a lease
Section 538 of the Civil and Commercial Code provides that a lease of immovable property cannot be sued on unless there is some writing signed by the party to be charged. It cuts both ways: a landlord who lets a room with no document at all has as much of a problem suing as the tenant does.
Leases longer than three years
The closing words of section 538 provide that a lease for more than three years, or for the life of either party, is enforceable for only three years unless made in writing and registered. A ten-year lease left unregistered is therefore not wholly ineffective; it is enforceable for three years, which is a different thing from being void.
Ending a lease for unpaid rent
The first paragraph of section 560 lets a landlord end the lease where rent is unpaid, but the second attaches a condition: where rent is payable monthly or at longer intervals, the landlord must first call on the tenant to pay within a stated period, which should be not less than fifteen days. Terminating at once without allowing that period is problematic from the start.
Eviction comes after that
Eviction is not something a landlord may carry out personally, however clear the breach. The order is: call for payment under section 560, terminate, then sue for possession and damages, and once judgment is given enforce it through the execution officer. Changing the locks, cutting utilities or removing belongings creates liability running back against the landlord.
Hire-purchase is not a lease
Hire-purchase has its own character and rules, distinct from an ordinary lease, particularly as to ownership not passing until payment is complete and as to the consequences of default and termination. What the document is called does not decide the matter; what the terms actually provide does.
PREPARE
What to bring
- The lease and its attachments
- The record of rent paid and the arrears outstanding
- Any notice already sent, with proof of service
- The landlord's title documents
- Photographs of the condition of the property
QUESTIONS
Questions this raises
The tenant is three months behind. Can I just change the locks?
It is not advisable. Retaking possession outside the process can turn the landlord into the party at fault, in civil terms and potentially in criminal ones. The correct route is the call for payment under section 560 allowing not less than fifteen days, then termination, then proceedings in order.
We signed a ten-year lease but never registered it.
Section 538 does not destroy the agreement; it limits enforcement to three years. In practice the period beyond three years cannot be enforced, so both sides should establish when the three years run from before planning anything further.
LAW
The legislation
- Civil and Commercial Code, sections 538 and 560
ENQUIRIES
