When the owner rents a property, it is very important that he knows how to deal with adverse situations. After all, problems can occur during the lease, as in cases where the tenant does not pay rent and does not want to leave the property.
But what to do when that happens? There are some steps you can take – from amicable remedies to the eviction appeal. It is also important to act in accordance with the terms of the rental agreement and the rule that regulates the lease of urban properties, Law No. 8,245 / 1991.
To find out what procedures to take when the tenant does not pay rent and does not want to leave, read on. Find out how to act and what rights and duties are guaranteed by law!
How to act if the tenant does not pay rent and does not want to leave?
If your tenant is late with rent and does not want to leave the property, the first step you should take is to seek to resolve the conflict amicably.
Here are some good practices for doing this:
1) Talk to the tenant
Before requiring the tenant to leave, it is most recommended that the landlord contact the tenant and try to resolve the default problem. By understanding the reasons why he is not paying the rent, you can propose alternatives, such as better payment terms.
2) Don’t overcharge
When dealing with a tenant who does not pay rent, it is essential that the landlord charges with respect and care. According to the Consumer Protection Code, abusive or excessive charges represent a legal infraction and may incur moral damage.
Exposing the tenant to ridicule or making threats, for example, are unacceptable attitudes. In addition, it is important to choose an appropriate time to charge. In case of contact by phone, give preference to business hours.
See in this post some ways to collect the rent late politely and even a sample collection letter :
3) Record charges in writing
When the tenant does not pay rent and does not want to leave, it is recommended that the landlord register the charges in writing before taking any more drastic action. You can do this through email conversations or message notifications.
This way, you alert your tenant about the non-payment of the rent and you can still use the written documents to prove the default, in case you need to go to court.
The most used method to collect the rent is the boleto bancário. With it everything is registered and fines and interest can be charged. Zimobi is a platform specialized in helping owners to manage their properties automatically and professionally. The platform has billing services and is super simple to implement. To learn more about charging your rent by bank slip
4) Search for a legal instrument
If the tenant does not pay rent and does not want to leave even after all previous attempts, the landlord can resort to legal remedies, such as extrajudicial collection and eviction.
For this, it is essential that the lessor acts in accordance with the terms of the Tenancy Law , which provides for the lease of urban properties – both residential and commercial.
What does the Tenancy Law say about when a tenant does not pay rent?
According to article 9 of the Tenancy Law, there are some possibilities in which the rental of a property can be undone. One of them is the lack of payment of rent and other charges.
Remember that this must be done according to the terms and terms defined by the law. In other words, the landlord cannot forcibly remove the tenant or invade the property to take it back.
In addition, before entering into legal measures, it is important to check whether the lessee has provided any guarantees at the time of renting the property, such as a guarantor, a security deposit or any rent advance.
If these measures are also frustrated, the appropriate judicial instrument to demand your property in cases of default is the eviction action or an injunction.
5) Eviction action
Article 62 of the Tenancy Law establishes that, in the eviction action, the request for termination can be made together with the request for collection of rents and other charges specified in the lease.
For this, the action request must discriminate the updated amount of debts, including not only rent and rental accessories, but also fines, late payment interest and costs of the lessor with the process.
In this case – where the collection request is made in conjunction with the eviction action – the guarantor, if any, will be responsible for the process together with the tenant. In order to avoid eviction, the lessee or guarantor must deposit the arrears within a maximum period of 15 days from the court summons.
In the event that the judge deems the eviction action valid, the tenant must vacate the property within 30 days. Even with the eviction, the tenant must pay the debts in arrears, as well as the procedural costs and amounts due until the effective eviction.
It is also worth remembering that, if the owner prefers a faster solution, he can make the eviction request without the collection of the arrears.
For more information, Zimobi prepared a special post on this subject, check out:
When and how can I request the rental property to be vacated?
6) Preliminary measure
The preliminary measure for eviction of the tenant is used when the owner wants an even faster recourse to get his property back. In this case, according to paragraph 1 of article 59 of the Tenancy Law, the deadline for vacating the property is 15 days, regardless of the hearing of the opposing party.
For this purpose, in addition to the default of the lessee, there should be no guarantee in the lease agreement provided for in Article 37 of the Tenancy Law, such as surety, surety bond, surety bond insurance or fiduciary assignment of investment fund shares.
Even so, in the case of a preliminary injunction for non-payment of the rent, the lessee can avoid terminating the contract and, therefore, eviction. To do this, you must deposit the amounts due within the 15 days granted for eviction.
It is worth remembering that, in cases where it is necessary to resort to justice, it is important to seek legal support. A specialized professional will analyze each situation, finding the best solution for cases in which the tenant does not pay rent and does not want to leave the property.