My tenant will not pay or leave: property restitution process guide
Guide to My tenant will not pay or leave: property restitution process guide: key requirements, evidence, risks and when legal advice may be needed in Colombia.
Patrimonio en juego
Revise derechos, tiempos y pruebas antes de actuar. The strategy changes considerably depending on whether the issue is possession, leasing, purchase, or asset protection.If you find yourself in this situation, Colombian law grants you a powerful tool: the lease restitution-of-possession proceeding. Below, we explain how this process works.
What is the property restitution process?
The main objective of this lawsuit is for a judge of the Republic to order the tenant to return the property, given that they did not do so voluntarily. In addition to recovering the property, the proceedings seek a court order for the payment of overdue rent, unpaid utilities, condominium fees, and any applicable damages.
In what cases can I claim that the property be returned to me?
There are two main scenarios in which to seek restitution: due to the tenant’s default, or due to special grounds established by law.
1. For Non-Compliance (Default) This is the most frequent cause. It occurs when the tenant stops paying rent, utilities, or homeowners' association fees. In the claim, we will be precise in detailing exactly
2. Special grounds (Without there being a breach) You may also reclaim your property even if the tenant has been compliant. The rules vary depending on the type of property:
- Urban Housing (Law 820 of 2003): You may request the home back if you need to live in it (for at least one year), if it must be demolished or repaired, or if you must hand it over because you sold it. In these cases, notice must be given 3 months in advance by certified mail and a policy or bank guarantee equivalent to 6 months of rent must be posted to ensure that you will actually fulfill what you claimed. You may also terminate the contract simply at your discretion if it has been in force for more than 4 years, by paying an indemnity equal to 1.5 months of rent.
- Commercial premises (Art. 518 of the Commercial Code): If the business owner has operated in the premises for more than 2 years, they acquire the right to automatic renewal. However, you may claim restitution if the tenant breaches the agreement, if you need the premises to live in or to set up a business substantially different from your tenant's, or if the property is at risk of collapse and must be rebuilt.
Procedural advantages for the owner
The legislator designed this process to be as fast as possible, eliminating bureaucratic obstacles:
- ✓ No prior conciliation required: Unlike other lawsuits, here there is no need to exhaust the prerequisite to file. We can file the lawsuit immediately!
- ✓ Zero delay tactics: The law prohibits the tenant from filing counterclaims (reconvention), consolidating proceedings, or bringing in third parties to delay the trial. The judge will reject such actions outright.
What documents do we need to file the lawsuit?
The fundamental requirement is to prove that an agreement exists between the parties. If you have the lease contract in writing, we will attach it to the lawsuit.
What happens if the contract was verbal? Don't worry. The law allows proof of the contract's existence through summary evidence, such as two extra-judicial witness statements or an extra-procedural confession.
Whom should you sue?
It is common for contracts to have a primary tenant and several solidary guarantors or co-debtors. Although the law states that all are responsible for the obligations, for the exclusive purpose of eviction and recovery of the property, it is mandatory to sue the person who has physical possession of the property. If we do not sue the person living there, the restitution judgment will
How is the claim's amount measured?
As a general rule, the lawsuit is filed exclusively before the judge of the city or municipality where the property is located. Depending on the amount in dispute, the case shall be heard by a Municipal Civil Judge
To determine the amount in these proceedings, the law establishes clear variables:
- ✓ If the contract is for a fixed term, the current rent value is multiplied by the originally agreed term.
- ✓ If the contract is for an indefinite term, sum the rent value of the last year.
- ✓ When the rent contract payment is made through the fruits produced by the property, the amount will be determined by their value over the last twelve months.
- ✓ When restitution of possession arises from a contract other than a lease, the amount in dispute will be determined by the value of the asset, using the cadastral appraisal for real estate and the commercial value for movable property.
When to seek support to recover the property
Having a problematic tenant is a risk to your financial stability. This process requires drafting precise claims and providing the correct exhibits (such as guarantees or subsequent notices).
Do not let the debt keep growing. Remember that if you initiate an enforcement proceeding for unpaid rent, that procedure alone does not compel the tenant to return the property: to recover possession a restitution lawsuit is required. civil and real estate commercial law attorney analyzes the contract, structures the claims under Law 820 of 2003 or the Commercial Code as applicable, and assumes representation through the material delivery of the property.
Spanish
English
Portuguese
Chinese