In the world of leases, Eviction trial It seems like an indispensable legal tool, although it is an extreme one When the bond between landlord and tenant is broken. But when can this process begin? What conditions must be met for a judge to authorize the eviction of the property? Enrique Abate, lawyer specialized in real estate law and president of the Chamber of Real Estate Owners of the Argentine Republic, provides a precise look at the times, requirements and challenges involved in this jurisdiction.
“Failure to pay rent is the most common reason for eviction, as is failure to pay rental fee extensions, such as expenses, ABL or insurance,” Al-Abati explains. This distinction is not simple: the rental fee, defined in Article 1208 of the Civil and Commercial Code, includes the pure rent and all its annexes freely agreed upon between the parties. Therefore, Non-compliance From any of those areas It could enable the start of an eviction or even an enforcement trial.
he Pure rentFor its part, it is defined in Article 1187 of the same law It only indicates the price of the site. According to the law, l Eviction trial For non-payment There must be two consecutive months of arrears. However, as Abate explains, “This is not a general system, and therefore it can be agreed in the contract that with a delay of one month, a trial is already possible. Even if the delay is not consecutive, it can also be a reason for eviction, as long as it is expressly agreed.”
Another frequent reason is the expiration of the contract. In many cases, The tenant refuses to return the property once the agreed upon period has expired.Which forces the owner to initiate judicial proceedings. “It is a very comfortable situation for the tenant, especially if the guarantor becomes insolvent. It gets worse when eviction trials take between a year and a year and a half, for reasons related to the poor performance of the judicial system and the collateral position of many judges,” warns Abate.
this Judicial slowness It has side effects: it discourages compliance with contracts and harms compliant tenants. “It’s like in insurance companies: the higher the risks, the higher the requirements,” says the lawyer. “That’s why landlords today require more deposits or even down payments, something that was previously prohibited in rental housing.”
The new legal scenario, characterized by DNU 70/23 in force since December 2023, allows absolute contractual freedom. There is no longer a minimum legal duration for housing contracts – it was previously three years when the law was issued in 2020 and repealed at the end of 2023 – and it is allowed to agree on deposits for each year of rent or advance payments without limits. “I recommend a one-month deposit for each year of the contract. If it’s for two years, two months. And that it be returned based on the last month of the current rent, not the historical value,” Abbate recommends.
In addition to non-payment and expiration of the contract, there are other grounds for eviction that are expressly stipulated in the law: Assignment of the contract or sub-site When they are prohibited. “The general rule is that transfer and assignment are permitted, but 99% of contracts prohibit them. If they are prohibited and this clause is breached, that is also grounds for eviction,” the lawyer explains.
The Argentine federal system adds another layer of complexity: Each province has its own procedural law. “For example, in Mendoza there is the fastest procedure in the country. There, due to non-payment or expiration of the contract, you can evict in less than six months,” highlights Abate.
Another key point is what happens and when The contract expires and the tenant refuses to hand over the property, Even after I paid until last month. In this case, it is no longer a matter of unpaid rent, but of “impromptu occupation”, i.e. outside the contractual period. “This corresponds to a trial for damages and losses, which is different from a trial for collecting rents. If both cases occur – debt and occupancy after maturity – two trials must be held: an executive trial for the rents owed and another for knowledge of the damages and losses,” explains Abate.
This second trial is more complex, because it requires proof of economic damage, the rental value of the space, and other elements. However, it can be simplified If the contract includes a penalty clause specifying a specific amount for each month of improper occupancy. “If the contract says that in the event of improper occupancy, the tenant has to pay, say, $200 a month, and that’s done as if it were rent. It’s very quick,” he says.
Abate’s conclusion was straightforward: “The secret to a successful eviction trial is a well-drafted contract. A poorly drafted contract hurts your trial.” In the context of contractual freedom and judicial slowness, clarity in agreements and anticipation of conflicting scenarios become essential tools for protecting the rights of both parties.
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