This is a common mistake of rental apartment owners. As a result, they waste valuable time and money
— I have been renting a two-room apartment to a mother and her child for four years, based on a regular rental agreement. Until February, she paid regular fees, in March she was two weeks late, and she did not pay for April and May. I call, please, and nothing. She also didn't want to let me in, claiming that I had no right to disturb her peace. What can I do – asks Mr. Darek, a Business Insider reader.
Unfortunately, when a tenant fails to pay rent and stops responding to messages, the landlord cannot automatically enter the apartment or terminate the contract overnight. In its activities, it must take into account regulations, including the Act on the Protection of Tenants' Rights.
— In practice, you have to act step by step, calmly and formally. At the same time, it is worth constructing the contract in such a way as to reduce the risk of non-payment in the future and speed up the recovery of the apartment – advises Dorota Strzesak, legal advisor and restructuring advisor at the DSK law firm.
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In her opinion, the first step is to precisely determine the amount of debt and send a request for payment.
— If the tenant fails to respond, a letter should be prepared giving notice of the intention to terminate the contract, setting an additional month's deadline for payment of outstanding and current receivables, adds Dorota Strzesak.
It should be remembered that in accordance with Art. 687 of the Civil Code, if the tenant of the premises is in default with the payment of rent for at least two full payment periods, and the landlord intends to terminate the lease without notice, he should notify the tenant in writing, giving him an additional month's deadline to pay the outstanding rent..
Therefore, the owner should send a request for payment for two unpaid months. Only if the payment is not made within the additional deadline, further steps can be taken, including referring the case for payment to court.
If the tenant does not pay despite the additional deadline, the lease agreement must be terminated.
— It should be made in writing and clearly indicate the basis for termination, the amount and period of arrears, prior notice, and the date of termination of the contract – advises the counselor.
Without terminating the contract, it will be difficult to get rid of the tenant, as we explain in the following paragraphs.
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Summons and notice of termination are sent by post
And now the most important thing. All letters, from the first request for payment to termination of the contract, must be sent in writing by registered letter with return receipt requested. It is a yellow form that must be completed at the post office. In the space for additional information, it is always worth writing what the letter was about, e.g. a request for payment.
— Return receipts are important evidence of compliance with procedures and deadlines. Tenants do not always receive correspondence and then often claim that they have not received anything and the lease agreement is still valid – explains Dorota Strzesak.
Return receipt by post
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In civil law, what matters is not whether the tenant actually read the letter, but whether the notice of termination was sent to him in such a way that he could become familiar with its content. – This is a key principle when assessing the effectiveness of terminating a lease – emphasizes the expert.
Double advice is a very important piece of evidence, but it does not act as an absolute rule in every civil case. — Helps the landlord demonstrate that the shipment was routed correctly, the tenant had the opportunity to collect it, and failure to collect it should not be a liability for the landlord. This is particularly important when the tenant deliberately avoids collection, explains Dorota Strzesak.
If the circumstances indicate that the tenant consciously does not receive correspondence, the law should not, as a rule, reward him for such behavior. In such a case, it is easier to defend the thesis that the notice of termination was effective because the tenant had the opportunity to read the content, but did not use this opportunity himself.
The tenant is silent, he doesn't pay, what about the eviction?
If the tenant still does not leave the premises, the only option is to go to court.
— Please remember that the landlord cannot evict the tenant from the apartment “on his own”, e.g. by changing the locks, cutting off the utilities, throwing away the tenant's belongings or entering the apartment by force. He exposes himself to criminal liability, among others. joke. 193 of the Penal Code (violation of domestic privacy) – says Dorota Strzesak.
At this stage, Art. 16 of the Act on the protection of tenants' rights. According to him court judgments ordering the vacancy of the premises are not enforced in the period from November 1 to March 31 of the following year inclusive, if the evicted person has not been indicated the premises to which relocation is to take place.
Therefore, eviction can only take place by virtue of a court judgmentand thus the owner of the premises must first file a lawsuit in court and win the case initiated on its basis.
Two types of debt may be grounds for eviction. The first is the lack of rent payments. The second is unregulated fees for utilities such as water, gas and electricity. The legal situation depends on who the tenant pays for the utilities. If the tenant has signed contracts directly with suppliers, claims lie with these companies. In such a case, utility arrears do not constitute grounds for eviction for the owner. However, if the owner settles the utilities and the tenant does not pay him, he has the right to terminate the lease.
When going to court, you must remember about another important formal requirement. Winning an eviction case will only be possible if the tenant does not have the legal title to occupy the property. This is why the lawsuit should be filed in court only after the tenant has been terminated and the notice period has expired.
– Without it It will not be possible to evict a tenant who does not pay the rent, the expert adds.
If the tenant does not vacate the apartment after effective notice, eviction proceedings may be initiated. The court fee for an eviction lawsuit is PLN 200.
Dorota Strzesak, however, warns that eviction cases often take many months or years, and during this time the owner has limited options for action.
Even a final victory in court does not end the case. Only the bailiff is authorized to remove a person from the premises. It operates on the basis of a final court judgment.
In addition, the court may grant the tenant the right to social housing. This happens when the tenant does not have the means to meet his or her own housing needs or has children. — The eviction may then be significantly delayed due to the lack of available social housing in the commune. As a result, dishonest tenants may generate high losses, so legal deadlines and procedures should be consistently observed, warns the counselor.
Joint lawsuit for eviction and payment
After effective termination of the lease agreement, the owner may also demand payment of overdue rent and interest, as well as compensation for non-contractual use of the premises for the period after the end of the lease.
This last claim is particularly important. — After the termination or expiration of the contract, the tenant no longer uses the premises on the basis of the lease, so the basis for pursuing claims is the non-contractual use of the premises – says Dorota Strzesak.
The owner may demand both eviction and payment in one lawsuit, or submit two separate lawsuits. One for eviction, the other for payment. At first glance, two paths may seem to be a more complicated option, but after analyzing the situation with a lawyer, it may turn out to be more effective. Eviction cases often take longer, which will slow down obtaining a payment order.
When claiming rent, it is worth remembering the content of Art. 688 [1] Civil Code, according to which adults permanently residing with the tenant are jointly and severally liable for the payment of rent and other due fees, with the exception of adult dependent descendants who are unable to support themselves.
— The liability of these people is limited to the amount of rent and other fees payable for the period of their permanent residence – says legal advisor Dorota Strzesak from the DSK law firm.
As you can see, getting rid of a tenant is burdensome and long-lasting. It is easier if the owner signs an occasional lease agreement. We will explain why such an agreement is better and how to conclude it in the next article.
