In the summer of 2020, the world witnessed in shock an unprecedented health crisis. In Spain, infections number in the tens of thousands and deaths in the hundreds. Tatiana – fictitious name, true story – was then 82 years old and caring for her husband, who suffered from dementia. Also of herself, who in June of the same year had suffered a fall which had caused a fracture of the radius and another fracture of the nose. At the beginning of July, when the bank was preparing to pay the rent, which had been deposited into an account to which part of his pension was transferred, less than 10 euros were missing to cover the 904.82 euros of rent. The entity did not notify him that the transfer had been returned. The owner, a company, also did not let him know that he had not received it on time. When the woman’s family found out in early August, they immediately caught up. But for the owner, it was already too late: he requested his eviction and began legal proceedings which led the Supreme Court to reconsider its own doctrine and agree with the tenant.
In a judgment published in July, the Supreme Court considers that the involuntary and punctual delay of a monthly payment is not an automatic reason for termination of the contract. The case is particularly striking, because the woman had been paying the rent stipulated by the agreement, within the first five days of the month, since 1983. The message sent by the High Court is clear: an oversight after 37 years of service does not mean justifying an expulsion. And he also affirms that the non-payment of this monthly payment, finally paid on August 3, “did not cause any damage to the creditor”.
“Until now, the Supreme Court had been very severe in ruling that in the event of breach of contract, the owner had the right to throw the tenant onto the street,” explains lawyer expert in real estate law Alejandro Fuentes-Rojo , who handled the case. The legal process began with the Court of First Instance number 7 of Barcelona which protected the family, considering that this “delay in execution did not harm the interests of the creditor”. The court recognizes that the family had been paying their rent on time since May 1, 1983. It also shows the increase in housing prices. That year they started paying 300 euros, which was multiplied by three in the case of this old rent: in 2020 they were already 904.82.
In this first instance, the judgment rejects the request considering that “we are not faced with a real failure to fulfill the obligation” to pay, but rather with a “simple delay, without in any case the interest of the lessor having been injured” or to a “fortuitous event” included in article 1105 of the Civil Code, which indicates that “no one will be responsible for events which could not have been foreseen or which, if foreseen, were inevitable”. Furthermore, this court points to the “responsibility of the bank with which payment of the invoice was made, which did not notify the overdraft”, and discredits the attitude of the owner, “who could have notified the restitution of the discovered.” invoice and, instead, “He filed the claim directly.”
After this judgment, the owner appealed to the Barcelona Provincial Court, which approved the eviction. He did so, moreover, on the basis of the Supreme Court’s “numerous pronouncements” on this issue. Precisely, in a 2009 judgment, this body recognized that “the taking into account by the courts of other different deadlines, to distinguish simple delay from non-compliance with the resolution, would lead to the most absolute legal insecurity, creating an undeniable risk of arbitrariness. rather than arbitrary.”judicial”, although this “without prejudice to the fact that the circumstances of the specific case can and must be taken into account to assess whether or not there has actually been a breach of contract”. Thus, the Court cites decisions which, in similar cases, find in favor of the owners.
“Trial courts do not establish any sort of case law. In fact, between 30 and 40% of resolutions end up being revoked by the Court,” explains Fuentes-Rojo. This lawyer chose to file an appeal before the Supreme Court in the face of scientific doctrine and certain judicial declarations which already indicated that the doctrine was too harsh, even if it had to be applied. “We considered that this doctrine was outdated and that it needed to be adapted to the evolution of current social reality and the current housing problem. Tenant protection needed to advance, just as it did in the area of mortgage foreclosures, where the courts established a much more protective doctrine. The tenant cannot be less protected,” he explains.
In 2020, despite regulations that protected tenants from evictions, in the midst of a health emergency, more than 21,000 evictions were carried out in Spain due to violations of the urban lease law. As the chart shows, in 2021 and 2022 these remained above 27,000 and fell below 20,000 in 2023, in part due to the enforcement of the National Housing Act, which gives certain guarantees to tenants of large tenants, such as the implementation of arbitration. system and more time for social services to offer housing solutions.
With this judgment, the Supreme Court gives the courts the indication to re-examine the specific circumstances of each non-payment. “Many other convictions have deported elderly people; What is relevant is that it considers that the mere delay in the payment of a single monthly rent in a long-term contract in which the tenant has paid religiously cannot be a cause for direct termination of the contract. , indicates the lawyer, who specifies that “the owner has the right to recover, as he did, but not to terminate a contract in the event of a one-off, temporary and involuntary breach, which does not cause him harm”,
