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Thursday, 09 February 2017 15:57

The eviction for precarious

Since the 2008 real estate crisis, 400,000 to 600,000 evictions have been estimated. Now, we should not confuse the eviction by default of income or amounts assimilable to it with eviction by precarious.

The precarious eviction procedure is a mechanism by which the recovery of a property is sought if it is occupied by a third party without an enabling title for it (rental contract, for example).

Such occupation may be given:

  • With the prior consent of the owner of the property, that is, when the owner allows a third party to occupy the property for free and indefinite.
  • Without the prior consent of the property owner, commonly known as the "squatting movement".

What legal actions can I take?

According to the Law of Civil Procedure, eviction by precarious is a process that is substantiated by the proceedings of verbal judgment. Thus, the process will begin with the filing of a precarious eviction suit before the First Instance Court of the place where the property is located.

In these cases, it is not necessary to require the occupant to evict the property prior to the commencement of legal proceedings, through a burofax, for example, since the law does not require it. However, it is recommended that the aforementioned requirement be fulfilled since, in view of the costs, the Judge will assess the intention to seek an out-of-court settlement by the plaintiff.

In the body of the petition, signed by a lawyer and a public prosecutor, the plaintiff's active legitimacy must be proven, that is, prove the title to the occupied property. On the contrary, the defendant must prove that he has sufficient title to remain in the property in question.

What is the procedure?

Once the application has been filed and admitted, the Court will transfer the same to the defendant, so that it can respond within 10 days, and indicate if a trial is required.

In order to safeguard the question of "squatter" properties, since the identity of the defendants is unknown, it must be addressed to the "ignored occupants", that is to say, it will be directed against any persons who enjoy or have precarious the property.

Upon request, both parties or one of the parties, the Court shall summon them to appear in court. If not requested, and if it is not considered opportune by the Judge, a judgment will be issued directly.

The judgment will indicate that the defendant must evict the property. If you do not do so voluntarily, you must file an enforcement complaint within 20 days after the date of the Judgment to set a date for the release, in which the occupants will be evicted amicably or, ultimately, forced.

How long can the procedure last?

The duration of the whole procedure can reach 8 months in the first instance.

Writings SF Lawyers