What is the property eviction proceeding and how does it differ from a simple eviction?

The property restitution proceeding (restitución de inmueble) is the judicial process through which the owner or the party who originally delivered possession recovers the physical control of the property from someone who retains it without legal entitlement or after the title that covered their occupancy has ended. In Colombia there is no valid extrajudicial eviction: only a judge can order the handover, since self-help remedies are prohibited. The applicable legal route depends on the specific facts, so it is advisable to review your situation with an attorney.

When does the restitution of a leased property proceed?

It proceeds when the lease agreement has ended due to expiration of the agreed term, default in the payment of rent, or another legal ground, and the tenant does not voluntarily vacate. The urban residential lease statute regulates the applicable grounds and, in several cases, requires prior steps such as advance notice. Each contract may have particular features, so it is advisable to review the case with an attorney before filing a claim.

Can I recover my property if the occupant never had a contract with me?

If the person occupies the property without any legal title and you are the registered owner, the usual route is the rei vindicatio action (acción reivindicatoria), which seeks to have the possessor or holder restore the property to the party who proves ownership. This differs from the restitution of tenancy (restitución de tenencia), which presupposes a prior delivery with a legal title. The correct characterization depends on the facts and documents, so it is advisable to have an attorney review them before proceeding.

Do I need to give notice before seeking the restitution of a leased property?

In several situations the law requires prior written notice with the appropriate lead time, especially when termination is based on the expiration of the agreed term and the landlord wishes to recover the property. Omitting this requirement may undermine the success of the claim. Since the requirements vary depending on the ground invoked, it is advisable to verify with an attorney what notice applies to your specific case.

What documents do I need to start the restitution proceeding?

Generally required are the title establishing your right — such as the lease agreement or the certificate of title and freedom (certificado de tradición y libertad) proving ownership — together with evidence of the ground invoked, for example proof of default in rent payments or the notice of termination. The exact documentation depends on whether the action is a restitution of tenancy or a rei vindicatio. It is advisable to gather and review these supporting documents with an attorney before filing the claim.

How long can a property restitution proceeding take?

The duration varies considerably depending on the court, the complexity of the matter, the defenses raised by the opposing party, and the caseload of the judge. Restitution of tenancy proceedings are generally handled through an expedited procedure, whereas the rei vindicatio action follows the ordinary oral process, which tends to take longer. It is not possible to guarantee a fixed timeframe, as each case develops differently.

Is it mandatory to attempt conciliation before filing a restitution claim?

In the restitution of a leased property, the law exempts parties from the prior conciliation requirement as a procedural condition for filing a claim, whereas other civil matters may require it. The need to conciliate therefore depends on the specific type of action being pursued. It is advisable to confirm this point with an attorney, since omitting a procedural requirement when it does apply can lead to the rejection of the claim.

Can the judge order the property to be handed over before the proceeding ends?

In restitution of holding, if the defendant does not deposit on time the rent owed or the sums they undertook to pay, the judge may order the property to be handed over without waiting for the judgment. This consequence operates under strict statutory rules and requires the claimant to prove the conditions set out in the law. Given its impact, it is advisable to raise this request with the advice of a lawyer.

What can the occupant do to defend themselves in the proceeding?

The defendant may answer the lawsuit, raise defenses and produce evidence, for example dispute the existence or the termination of the contract, claim payments already made or, in a reivindicación (action to recover ownership), challenge title or invoke prescripción adquisitiva (acquisitive prescription). In a lease, moreover, the law makes the defendant's right to be heard conditional in certain cases on depositing the rent. Each defense has its own requirements, so it is advisable to assess it with a lawyer.

How do possession (posesión), holding (tenencia) and ownership (propiedad) of a property differ?

The owner holds the derecho de dominio (title of ownership), generally evidenced by the deed and its registration in the folio de matrícula (land registry folio); the possessor holds the property with the intent of an owner even if not recorded as the owner; and the holder detains it acknowledging another's ownership, as the tenant or the borrower under a loan for use does. This distinction determines which action is available in each case, so it is advisable to pin it down with a lawyer before acting.

If someone has been occupying my property for years, can they become the owner by prescription?

Prescripción adquisitiva, or usucaption, in principle allows ownership to be acquired where the property is possessed with the intent of an owner, publicly, peacefully and without interruption for the statutory periods. However, a mere holder, such as a tenant, does not acquire by prescription so long as they acknowledge another's ownership. Since availability depends on the type of occupation and on the time elapsed, it is advisable to assess your case with a lawyer.

How long does it take to acquire real property by prescription in Colombia?

As a general rule, extraordinary acquisitive prescription requires ten years of possession, and the ordinary form, which requires justo título (just title) and good faith, requires a shorter period for real property. These periods are counted under specific rules and may be interrupted or suspended. Since the applicable form depends on the circumstances of the case, it is advisable to verify the exact period with a lawyer.

Does the existence of a lease contract prevent the occupant from claiming prescription?

In principle yes, because the tenant is a mere holder and acknowledges another's ownership, so their occupation is not capable of usucaption while that relationship subsists. Nevertheless, in exceptional situations a change in the nature of the holding has been debated, which is a contested matter that turns on the evidence. Given its complexity, it is advisable to analyze the specific scenario with a lawyer.

How much does it cost to pursue a property restitution proceeding?

The cost depends on variables such as the applicable procedural route, the amount in controversy, the estimated duration and the steps the case requires, so it is not possible to set a single figure. At Cafore we present you with a clear fee proposal before starting; our services are paid services and we do not offer advice at no charge. It is advisable to review the scope of the case in order to give you an estimate tailored to your situation.

Is it advisable to try to recover the property on my own before filing a lawsuit?

Recovering the property by force or changing the locks without a court order may expose you to liability, since only the competent authority can order the handover. It is valid, on the other hand, to first exhaust routes such as prior notice or a documented handover agreement where these are available. Because of the risk of acting wrongly, it is advisable to define the strategy with a lawyer before taking any step.

What risks are there if I file the restitution lawsuit without the correct legal characterization?

Choosing the wrong action, for example suing for holding when the proper claim was reivindicación, or failing to prove the ground invoked, may lead the judge to dismiss the claims for relief or cause the proceeding to drag on. An appropriate characterization of the facts and the evidence reduces that risk, although no outcome can be guaranteed in advance. That is why it is advisable to have a lawyer review the case before filing the lawsuit.

How does Cafore support a property restitution proceeding?

At Cafore we review your documents, identify the procedural route that best fits the case, prepare the lawsuit and represent your interests during the proceeding before the competent judge. At each stage we explain to you which steps come next and which scenarios are reasonable, always managing expectations prudently. The specific scope is defined once we assess your particular situation.

Evicting a Non-Paying Tenant in Colombia

Owning a leased property is an excellent investment, until the tenant stops paying and refuses to return the property once the contract ends. It has traditionally been assumed that the tenant is the “weaker party” in this relationship, but in practice it is the landlord who bears the economic harm of being unable to use, enjoy or earn a return on their own assets.

If you find yourself in this situation, Colombian law gives you a powerful tool: the proceso de restitución de inmueble arrendado (court proceeding to recover a leased property) (also called restitución de tenencia por arrendamiento). Below we explain how this proceeding works.

What is the proceso de restitución de inmueble?

The main purpose of this lawsuit is for a judge of the Republic to order the tenant to return the property to you, given that they did not do so voluntarily. Beyond recovering the property, the proceeding seeks an order from the judge for payment of the overdue cánones (rent instalments), unpaid utilities, building administration fees and any compensation that may be due.

In which cases is restitución de inmueble arrendado available?

There are two broad scenarios for seeking restitution: breach by the tenant, or the special grounds set out in the law.

For breach (arrears)

This is the most frequent ground. It occurs when the tenant stops paying the rent, the utilities or the administration fees. In the lawsuit we will be precise, setting out exactly which months are owed and what the accumulated amount of the debt is.

Sentencia C-106 de 2021 — Corte Constitucional (M.P. Paola Andrea Meneses Mosquera)
The Corte Constitucional confirmed that the rule in numeral 4 of article 384 of the CGP (Código General del Proceso, Colombia's General Code of Procedure) is constitutional: when the restitution lawsuit is based on failure to pay the rent, the utilities or the administration fees, the defendant tenant will not be heard in the proceeding until they deposit with the court the total amount of the rent and the other sums owed according to the evidence filed with the lawsuit. This burden is not exhausted by that initial deposit: the tenant must also deposit on time, throughout the proceeding and in both instances, the rent that continues to accrue; if they fail to do so, they once again cease to be heard until they produce the corresponding deposit certificate. The Court explained that this is not a punishment or a limitation on the right of defense, but rather a procedural evidentiary burden: since non-payment is a negative fact that only the tenant can rebut, the law requires them to produce the proof of payment (receipts or the deposit) as a condition for the judge to examine their arguments. C-106/2021 — evidentiary burden on the defaulting tenant.

Special grounds (with no breach involved)

You may also ask for your property back even if the tenant is complying with the contract. The rules vary according to the type of property:

Urban housing (Law 820 of 2003): You may ask for the house back if you need to occupy it as your own dwelling (for a term of not less than one year), if you must demolish or repair it, or if you must hand it over because you sold it. In these three cases you must give three months' prior notice through the authorized postal service and post a caución (security: in cash, a bank guarantee or an insurance bond) equivalent to six months' rent, to guarantee that you will indeed do what you claimed. The law also provides a different ground: terminating the contract at your sole will once it has been running for at least four years; in that case the same three months' prior notice is enough, together with compensation of 1.5 months' rent to the tenant, with no requirement to post the six months' security.
Commercial premises (art. 518 of the Código de Comercio [Colombian Commercial Code]): If the business owner has been in the premises for no less than two consecutive years with the same establecimiento de comercio (going business), they acquire the right to renewal of the contract. However, you may refuse that renewal and seek restitution if the tenant is in breach, if you need the premises as your own dwelling or for a business of your own substantially different from your tenant's, or if the property is in danger of collapse or must be rebuilt.

Article 520 — Código de Comercio (desahucio: notice to quit served on the tenant)
When the landlord decides not to renew the lease of commercial premises because they need the property for themselves or for a different business, or because they must rebuild or repair it owing to its dilapidated condition —that is, only on these two special grounds, not on arrears in the payment of the rent—, the law does not allow them to give notice from one day to the next: article 520 of the Código de Comercio requires the landlord to give the tenant a desahucio (prior notice) with no less than six months in advance of the date on which the contract ends. If the landlord does not meet this deadline, the consequence is not a mere penalty but rather that the contract is deemed automatically renewed or extended, on the same terms and for the same period as the initial contract. The only exception provided is that the property must be occupied or demolished by order of a competent authority, in which case the six-month period does not apply. Art. 520 C.Co. — 6-month desahucio to the tenant.

Procedural advantages for the owner

The legislature designed this proceeding to be as swift as possible, removing bureaucratic obstacles:

No prior conciliation is required. Unlike other civil claims, in restitución de inmueble arrendado there is no need to exhaust out-of-court conciliation as a precondition to filing: the Estatuto de Conciliación [Conciliation Statute] (Ley 2220 de 2022, art. 68) allows the lawsuit to be filed directly with the judge.
No delaying tactics. The law declares counterclaims, exclusionary intervention, third-party support (coadyuvancia) and joinder of proceedings inadmissible, so that the tenant cannot use these mechanisms to delay the case.

Article 384, numeral 9 — Código General del Proceso (Ley 1564 de 2012)
The Código General del Proceso lays down a specific procedural rule: when the sole ground invoked to seek restitution of the property is arrears in the payment of the rent, the judge must hear the case in a single instance, that is, with no appeal available against the judgment. This is not an option that the landlord "chooses": it is a legal consequence that the judge applies on their own motion as soon as they verify that the basis of the lawsuit is exclusively non-payment of the rent. In practice, this means that in the most common breach scenario —failure to pay the rent— the dispute is resolved in a single instance, without the additional appeal stage that does apply when other grounds are invoked. Art. 384-9 CGP — single instance for arrears in the rent.

Restitución de inmueble arrendado requires no prior conciliation and does not allow delaying tactics by the tenant, which makes it one of the swiftest civil proceedings in the Colombian legal system.

What documents do we need in order 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? Do not worry. Where there is no written contract, the law allows the lease to be proven by the tenant's confession or by at least summary witness evidence, that is, by declaraciones extrajuicio (out-of-court sworn statements) showing that the agreement exists.

Sentencia T-482 de 2020 — Corte Constitucional (M.P. Antonio José Lizarazo Ocampo)
The Corte Constitucional made clear that the deposit burden under article 384, numeral 4, of the Código General del Proceso —which requires the tenant to prove payment of the rent in order to be heard in the proceeding— is not required when the defendant produces evidence that gives rise to serious doubts about the very existence of the lease contract. This is not an option for the tenant to avoid paying, but a limit that the judge recognizes when the defendant has raised that doubt in a timely manner and there is evidence calling the contractual relationship into question. In the case decided, the Court found that the trial court required the deposit despite those doubts, which infringed the due process and right of defense of the tenant. T-482/2020 — limit on the deposit burden.

Checklist — documents for filing the lawsuit

Written lease contract, or summary evidence of the verbal agreement (the tenant's confession or declaraciones extrajuicio)
Certificado de tradición y libertad [land registry certificate of title and encumbrances] for the property (proves ownership)
Proof of the arrears: unpaid receipts, account statements or collection letters
Prior notice sent through the authorized postal service (when a special residential ground or a fixed-term contract is invoked)
Insurance policy or caución equivalent to six months' rent (special residential grounds that so require)
Full identification of whoever physically holds the property (a mandatory defendant)

Who must be sued?

It is common for contracts to have a main tenant and several guarantors or joint and several co-debtors. Although the law says that they are all liable for the obligations, for the exclusive purpose of evicting and recovering the property, it is mandatory to sue the person who physically holds the property. If we do not sue whoever lives there, the restitution judgment will have no practical effect.

How is the cuantía (amount in controversy) of your claim 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 controversy, the case will be heard by a Juez Civil Municipal (municipal civil judge) or a Juez Civil del Circuito (circuit civil judge).

To determine the amount in controversy in these proceedings, the law sets out clear variables:

If the contract is for a fixed term, the current rent is multiplied by the term initially agreed.
If the contract is for an indefinite term, the rent for the twelve months preceding the lawsuit is taken.
Where the rent is paid through the fruits produced by the property, the amount in controversy is determined by the value of those fruits over the last twelve months.
Where the restitution of holding arises from a contract other than a lease, the amount in controversy is set by the value of the asset: the avalúo catastral (cadastral appraisal) for real property and the market value for movable property.

When to seek support to recover the property

Having a problem tenant is a risk to your financial stability. This proceeding requires drafting precise claims for relief and filing the correct annexes (such as the securities or the postal notices) so that the judge does not reject the lawsuit.

Do not let the debt keep growing. Remember that if you start an enforcement proceeding for the unpaid rent, that procedure on its own does not compel the tenant to hand the property back to you: recovering the holding requires a restitution lawsuit. Our civil and real estate commercial law attorney reviews the contract, structures the claims for relief under Ley 820 de 2003 or the Código de Comercio as applicable, and takes on your representation through to the physical handover of the property.

Laws and case law cited

Law 820 of 2003, art. 22
Urban residential lease regime: grounds for termination by the landlord, prior notice through the authorized postal service and security in favor of the tenant. Official text (Secretaría del Senado, Colombia's Senate legal information service).

Código de Comercio, art. 518
Right of renewal of a commercial lease and its exceptions. Official text (Secretaría del Senado, Colombia's Senate legal information service).

Código General del Proceso (Ley 1564 de 2012), arts. 26 and 384
Amount in controversy and procedure for restitución de inmueble arrendado. Art. 384 (Secretaría del Senado) · Ley 1564 de 2012 (Función Pública, Colombia's official legal database).

Ley 2220 de 2022 (Estatuto de Conciliación), art. 68
Exemption from prior conciliation as a precondition for filing in restitución de inmueble arrendado. Official text (Función Pública).

Legal sources

Ley 820 de 2003 — Urban residential lease regime
Código de Comercio, art. 518 — Leases of commercial premises
Ley 1564 de 2012 (Código General del Proceso), arts. 26 and 384
Ley 2220 de 2022 (Estatuto de Conciliación), art. 68

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My tenant will not pay or leave: property restitution process guide