The claim to the guarantor for non-payment of rental income when the tenant has not paid it is an action allowed by law provided that a series of requirements are met that we will see later.
Before continuing, we want to explain the following issues:
It is common in housing or commercial lease contracts for the owner to attach a clause establishing that one or more persons become guarantors of the tenant.
These people will become guarantors of the fulfillment of the obligations assumed by the tenant, mainly the payment of rent, supplies and damages that may appear on the property at the end of the contract.
Regarding the scope of the guarantees that the guarantor assures, the clause of the contract referring to the guarantor must be taken into account, especially if it has been established that he waives the benefits of order, division and exclusion.
What judicial procedure does the landlord have if the tenant does not pay the rent?
When the tenant does not pay the rent on time, the landlord can take legal action to recover the home or premises, which is called an eviction trial.
With this quick procedure it is intended that the lessor recover possession of the property. But apart from that, it has the added advantage of allowing the landlord to exercise, if he wants at the same time and in the same lawsuit, the claim for the amount of the amounts owed by the tenant.
This accumulation of actions (recovery of the property and claim of amount) is allowed in article 438 of the Civil Procedure Law, which as an exception to the general rule of prohibition of accumulation of actions in verbal proceedings, allows that:
” The objective accumulation of actions will not be admitted in verbal trials, with the following exceptions: 3rd.- The accumulation of actions claiming rents or similar amounts due and not paid, in the case of trials of evictions from property due to lack of of payment or due to legal expiration.
As a result of the foregoing, the landlord who uses an eviction action to recover the dwelling or premises, when the cause is the non-payment of the agreed rent or the legal expiration of the term of the lease, may accumulate the claim action of said amounts owed in the same procedure.
Can the lessor directly file the procedure against the lessee and the guarantor?
Let's see the prerequisite before claiming the guarantor for non-payment of rental income:
In the event that the lessor goes against the guarantor to claim the rent or other similar amounts owed by the tenant, it is mandatory that prior to the legal claim, a reliable request to claim the amount owed is made.
If this extra-procedural requirement is not made prior to the start of the judicial procedure, the claim to the guarantor may be rejected by the Court for containing a defect in the procedure, which makes it unfeasible.
Article 437 of the LEC says:
” 3rd The accumulation of actions claiming rents or similar amounts due and not paid, in the case of eviction lawsuits for non-payment or due to legal or contractual expiration of the term, regardless of the amount that is claim. Likewise, the actions exercised against the surety or joint guarantor may also be accumulated prior to an unsatisfied payment requirement.
Before claiming the guarantor for non-payment of rental income, you have to carefully read the stipulation where the obligations assumed by the guarantor appear, and once you are clear that said person is the main debtor, it is mandatory to send him a reliable request detailing the debt held by the tenant, the amount and the setting of a voluntary payment term.
Hence the importance of reflecting in the contract all the personal circumstances (address, telephone, DNI, etc.) of the guarantor, including leaving an address indicated for the guarantor to receive notifications.
If you don't get your rent paid and you want to get your property back, call us.