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Appeal against an eviction judgement

We obtain a favourable ruling in an eviction trial condemning the tenant to vacate the property and pay the rent due, but what happens if the tenant files an appeal against this ruling?

In eviction proceedings for non-payment of rent or expiry of the contract term, we often find that, despite having obtained a favourable court decision obliging the tenant to vacate the property and pay the rent due, the tenant (i) does not leave the property; (ii) does not pay the rent due; and, in some cases, even appeals against the judgement with any excuse whatsoever.

What does the Law say and what happens in these cases? Article 449 of Law 1/2000 on Civil Procedure states that:

  1. In proceedings involving eviction, the defendant shall not be admitted to the appeal, extraordinary appeal for breach of procedure or cassation if, when lodging the appeal, he does not state in writing that he has paid the rents due and those which, according to the contract, he is required to pay in advance.

  2. The appeals, extraordinary appeals for procedural infringement or cassation, referred to in the previous section, shall be declared void, regardless of the stage they are at, if during the substantiation of the same, the respondent appellant fails to pay the instalments that are due or those that must be advanced. The tenant may advance or deposit the payment of several unmatured periods, which shall be subject to liquidation once the judgement has become final. In any case, the payment of these amounts shall not be considered as a novation of the contract.

In other words, the rule tells us the following:

  1. When in the judgement of the verbal eviction trial the eviction of the defendant has been agreed, if the latter appeals, it will be necessary for him to prove in writing that he has paid the rent that is due and that which he must pay according to the contract, in order for his appeal to be admitted for processing.
  2. Therefore, if the defendant has not paid the rent due, he loses his right to appeal against the condemnatory sentence.

The Provincial Courts and the Supreme Court itself have also ruled on the requirements necessary for the tenant convicted in an oral eviction trial to have the right to access the appeals system. By way of example, we cite the Judgment of the Provincial Court of Malaga, 5th Section, Judgment no. 605/2018 of 6 November 2018, Rec. 945/2016:

Article 449. LEC has been interpreted by the Supreme Court, Judgment of the Supreme Court of (Civil Chamber, 1st Section). Judgment no. 908/2011 of 30 November, stating literally that “this Court has declared that failure to comply with the requirements set out in Article 449. 1 of the LEC 2000, in order for appeals, extraordinary appeals for procedural infringement and cassation appeals to proceed, cannot be remedied by means of payment or extemporaneous deposit, and it is only possible to remedy this by accreditation of payment or deposit ( AATS of 25 September 2007, RC no. 398/2003 ( PROV 2007). No. 398/2003 ( PROV 2007 , 306191) , 23 March 2010 , RIPC n.º 1131/2008 ( RJ 2010 , 3921) , 25 May 2010, RQ n.º 651/2009 (PROV 2010, 248830) ).

This criterion is in line with the doctrine of the Constitutional Court developed in relation to other regulatory precedents of Article 449LEC ( SSTC 346/93 ( RTC 1993 , 346 ) , 249/94 ( RTC 1994, 249 ) , 100/95 , 26/96 , 216/98 ( RTC 1998 , 216 ) 10/99 (RTC 1999, 10) ) which can be summarised in the following points:

  1. a) The appeal deposit is not merely a formal requirement, but a substantive or essential requirement, the purpose of which is to guarantee the interests of those who have obtained a favourable judgment; it is an essential requirement for access to appeals which cannot be considered disproportionate, given the aims it pursues.

  2. b) This requirement must be interpreted in a finalist or teleological manner, taking into account both the very purpose pursued by the legislator in imposing it – which is none other than to ensure that the appeals system is not used as a dilatory instrument – and the principle of interpreting procedural rules in the sense most favourable to the effectiveness of the right to effective judicial protection and the general rule of art. 11.3 LOPJ (RCL 1985, 1578 and 2635).

  3. c) A distinction must be made between the fact of payment or deposit, at the appropriate procedural moment, and that of its proof or accreditation. It is possible to remedy the lack of accreditation of compliance when justification of this point has not been provided, as this is a formal requirement that can be remedied, but not the remedy of the payment or deposit itself.

  4. d) A decision not to admit the appeal can only be based on the prior granting of a time limit for the correction of the lack of accreditation of compliance.

  5. e) The decision not to admit the appeal due to the lack of an essential requirement is fully compatible with the right to effective judicial protection, in its modality of the right to access and use the means of challenge provided by the legislator, in such a way that only after being established in the Law do they become part of the content of the right to effective judicial protection and reinforce it, but always in the specific configuration of each of the laws of prosecution.

In conclusion, in order to be able to file an appeal against a judgment that sentences the tenant to vacate the property and/or pay the rent due, and for this to be admitted for processing, it is necessary that:

  • The defendant must pay all the rent due, as this requirement is considered an essential requirement and not merely a formal one.
  • Not only must the rents be recorded, but it is also necessary to prove it with documents.

Thus, the inadmissibility of the appeal due to the lack of this requirement is fully compatible with the right to effective judicial protection, as the aim is to avoid undue delays on the part of the appellant.

Therefore, when in an eviction trial a judgment is obtained that condemns the defendant to vacate the property and pay the rent owed, we must be careful to avoid the effectiveness of the judgment being delayed in time due to the lodging of an appeal against the judgment. Our legal system provides mechanisms to request that the appeal be rejected if the appellant and respondent has not paid the rent due and thus achieve the finality of the Judgment.

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