Legal Trick to Evict Non-Paying Tenants Debunked

The clause a lawyer proposes against rent arrears

Can you protect a rented apartment so that a tenant who stops paying doesn't stay inside? A lawyer has circulated on social media a formula that, according to her, turns the non-payment of the first annual installment into a case of fraud under Article 248 of the Penal Code. This would allow the owner to ask the investigating judge for precautionary measures such as the immediate expulsion of the occupant and even their detention. The starting point is a figure: in 2023, 15,289 reports of occupation were registered in Spain, according to the article collecting her proposal, and the phenomenon she calls "inquiokupación" —the tenant who stops paying and settles in— worries more and more owners.

The proposal fell on deaf ears among those with experience in courts. The most repeated argument is that a private individual cannot decide what constitutes a crime: the legal qualification of facts corresponds to the prosecutor or the prosecution, and it is the judge who determines if there is fraud. Inserting such a clause in a private contract, it is argued, is worthless paper: the judge will ignore it completely, one of the messages summarized.

Does inserting a penal clause in the rental agreement help?

No, according to the dominant view. The contract between private parties cannot qualify conduct as a crime nor turn a contractual breach into a incivil offense. The law governing a lease is the LAU (Urban Rental Law), and clauses conflicting with it are void. Some add that the Penal Code itself already defines fraud with its requirements, and that unpaid rents do not fit that mold: there is no sufficient prior deception to support the accusation.

The second problem is practical. Even if the incivil route were admitted, precautionary measures are not automatic: the investigating judge grants them or not, and judicial timelines —notifications, appeals, saturated courts— can stretch the matter over months or years. The immediate expulsion promised in the video clashes with the reality of a procedure that is not express.

What happens when the tenant stops paying and stays inside

The delinquent tenant who remains in the dwelling has, according to several messages, more legal protection than the squatter who enters an empty house. That asymmetry explains the sense of defenselessness pervading the issue: the owner sees how their property remains occupied while the procedure advances, and sometimes discovers that the occupant has transferred their assets to third parties, forcing a new lawsuit for asset concealment to try to recover something.

The wear and tear is not only economic. A case detailed in the discussion speaks of three years of process, 10,000 euros between lawyer and court representative, and a final debt impossible to recover. The conclusion drawn: the judicial route exists, but it arrives late and often does not arrive at all.

Alternatives considered outside the courtroom

Imagination runs wild when the law does not respond. It is mentioned registering a trusted acquaintance in the empty dwelling and passing by occasionally to collect mail, to prove someone is residing there. There is also talk of keeping a weapon in the home, an idea several messages dismantle with the regulations in hand: storing a weapon outside the usual residence without an approved safe can lead to sanctions, and the Civil Guard would seize the weapon before resolving the occupation. The result would be an added problem.

Another current argues that the solution lies in selling properties that are not the primary residence, so there is nothing to occupy. And a third, more cynical, points to the expedited route without going through security forces, with the obvious risk this entails.

The underlying problem: lawyers promising what the law does not give

The harshest criticism is not against occupation, but against those advising. It is warned that many professionals do not master their trade and may generate more problems than they solve. The repeated recommendation: choose a lawyer with criteria, verify their competence, and distrust magical formulas circulating on social media. The full calculation of what a poorly planned procedure costs, broken down item by item, yields a discouraging figure.

And underneath everything, an uncomfortable suspicion: that occupation is not the fruit of political incompetence, but of deliberate management. The law, it is said, truly protects only those who already have something to lose. With these foundations, the star clause of the lawyer serves, at best, to fill a page.