TENANT EVICTION – LAWYER

How is a tenant evicted?

Tenant eviction is an unpleasant development when the tenant fails to pay rent or generally does not comply with the terms of the lease agreement. The causes are often attributed to the economic crisis; however, there are also many strategic defrauders who habitually rent a residence or commercial premises with the intention of not paying rent or paying whatever amount they wish, regardless of the agreed rent. In such cases, the landlord faces the loss of rental income for a long period of time due to the tenant’s recalcitrance, resulting in financial harm to the landlord. Beyond the rent owed, an additional factor that further complicates the situation today and drives landlords into a deadlock is the accumulation by tenants of further debts, such as shared expenses, electricity (DEI), water (EYDAP), etc. As a result, in order to use their property, landlords are required to settle the aforementioned debts. In the above cases, the landlord has the legal option to choose between two different procedures for tenant eviction: a) the issuance of an order for the return of the leased premises and payment of rent, and b) the filing of a lawsuit for the return of the leased premises and the payment of rent.

The tenant eviction procedure involves costs for the landlord but constitutes a necessary route for him to lawfully regain the use of his property. The required time is set at less than two months, as the procedure is short, by means of an application for an eviction order (order for the return of the leased premises) before the competent court. Below follows an extensive analysis of the main features of each procedure, as well as their requirements. It is noted that this article will analyse the options available to landlords for eviction in respect of unpaid rent, and not for any other cause, e.g. improper use of the leased premises.

How is a tenant evicted by means of an order for the return of the leased premises?

1. Service of an extra-judicial notice

Service is effected through a bailiff, by which the tenant is called upon to pay the rent owed within a specified deadline. It is noted that in many cases the tenant settles and pays the rent, fearing the judicial development of the case. If the tenant fails to pay, the eviction procedure proceeds as follows:

2. Issuance of an Order for the Return of the Use of the Leased Premises

This order is issued promptly within approximately two weeks and orders the tenant to return the use of the premises to the landlord. Together with this order, the rent owed, as well as water supply expenses and electricity charges that the tenant may not have paid, may be claimed. The order for the return of the leased premises and payment of rent is a simple procedure, especially following the enactment of Law 4335/2015, characterised by speed, as no appearance or oral hearing in court is required. The time required for its issuance is set at less than two (2) months. Due to its short character, this procedure has come to be known as “express” eviction. Furthermore, this procedure is preferred as it allows for the inclusion of debts arising from shared expenses, electricity (DEI), water (EYDAP), and other public utility organisations.

The conditions that must be met for eviction by issuance of an order for the return of the leased premises and payment of rent are the following:

• An active lease agreement, evidenced in writing. Following Law 4335/2015, it suffices that the commencement of the lease be evidenced in writing, by means of the lease agreement (or the declaration of registration of the lease in the taxis system, provided that the declaration of all contracting parties is shown), without it being any longer necessary to renew the lease agreement in writing.
• Delay in payment of rent due to recalcitrance. A tenant is considered recalcitrant when he fails to pay the rent on time without a reasonable cause, that is, when he is in default. Default is deemed to exist when the rent is not paid on the agreed date that the parties usually stipulate in the lease agreement. By the mere passing of that date, the tenant is placed in default. It follows from the above that even the non-payment of a single instalment of rent is sufficient to constitute recalcitrance. A case of repeated recalcitrance exists when the tenant delays the payment of rent on more than one occasion, in such a manner as to demonstrate persistence in failing to fulfil his obligation to pay regularly.
• Service of a written notice (extra-judicial notice — invitation to pay rent) through a bailiff. Pursuant to the provision of Article 637 of the Code of Civil Procedure (KPolD), the notice must be served through a bailiff. Therefore, it cannot be effected by any other means, and if it is, it shall be deemed not to have been served. Service of the written extra-judicial notice is required only on the first occasion, and is not required where the tenant has repeatedly delayed the payment of rent.

It is noted that the service of this extra-judicial notice does not constitute termination of the lease; it merely warns the tenant of the possible commencement of the eviction procedure. It is very important that a good lease lawyer does NOT terminate the lease, in order to be able to achieve a swift eviction procedure. If the landlord proceeds to terminate the lease, he cannot obtain an order for the return of the leased premises (express eviction), but will have to follow the procedure of a lawsuit for the return of the premises, which is analysed below.

In practice, an extra-judicial declaration is sent to the tenant, by virtue of which the landlord grants a period of fifteen (15) days, as prescribed by law, in order for the tenant to remedy the recalcitrance and pay off the debts arising from the unpaid rent. The 15-day period is particularly important for the tenant, as if he pays the rent owed, he prevents the eviction procedure and the order for return cannot be issued — unless, of course, there is repeated recalcitrant delay on his part. Conversely, if he does not pay the unpaid rent within the prescribed deadline, the landlord may proceed normally with the filing of the application for the issuance of the order for the return of the leased premises.

The fifteen (15)-day period begins on the day following the service of the extra-judicial notice and expires when the entire last day has elapsed. The service of the extra-judicial notice constitutes the first step in the commencement of the tenant eviction procedure. In the event that the fifteen-day period for the payment of the rent owed elapses without action, the procedure proceeds to the filing of the application before the competent court for the issuance of an order for the return of the leased premises and payment of rent.

Jurisdiction, in this case, for the issuance of the order for the return of the leased premises lies with the Magistrate’s Court of the place where the leased premises are located, if the monthly rent is up to €600.00, while if the rent exceeds that amount, jurisdiction lies with the Single-Member Court of First Instance. Territorial jurisdiction is determined by the address of the property. Eviction lawyers in Athens or Thessaloniki file the application for an eviction order accordingly.

In most cases, the tenant gives way and hands over the property to the landlord; otherwise, enforcement of the judgment must be pursued.

What documents are required for the issuance of an Order for the Return of the Leased Premises?

The application must include, in addition to the elements required by Article 118 of the Code of Civil Procedure (KPolD), those of Article 119 para. 1 KPolD, as well as: a) a request for the issuance of an order for the return of the use of the leased property and a mention of the place where it is located, with a description thereof; b) reference to the document evidencing the lease, namely the lease agreement; c) reference to the case under Article 637 KPolD pursuant to which the return of the use of the leased premises is sought, with reference to the necessary circumstances, as well as the service report (Article 639 para. 2 KPolD). The application must mention the fact of the delay in payment of rent due to the tenant’s recalcitrance, as well as that the written extra-judicial notice was duly served on the tenant within the prescribed time. As this particular procedure does not provide for an oral hearing in court but proceeds solely upon submission of the necessary documents, the supporting documents for the issuance of an order for the return of the leased premises and payment of rent are the following:

• The document evidencing the lease (the lease agreement, as well as the declaration of registration of the lease in the taxis system)
• All documents relating to the standing of the landlord
• The service report of the written extra-judicial notice from the landlord to the tenant, demonstrating that this took place within the prescribed time
• The written extra-judicial notice to the tenant

It must, however, be noted that there is no longer any obligation to submit to the court a certificate from the competent tax office (DOY) confirming that the rent for the last two years from the leased property whose return is sought has been declared. Nor is the submission of an ENFIA certificate required for the issuance of an order for the return of the use of the leased premises.

After the application is filed with the court and once it is found to be lawful and the requisite circumstances are evidenced in writing in each case, the judge issues, within a short time, the decision, which constitutes an enforceable title. By this decision, the tenant is required to return to the landlord the use of the leased premises and is ordered to pay the court costs. The time for the issuance of the decision for the return of the leased premises and the payment of rent varies according to the workload of the respective court, but on average, two (2) weeks are required from the filing of the application to the issuance of the decision.

Immediately thereafter, the decision (specifically, the certified copy of the decision) is served on the tenant through a bailiff. Together with the service of the decision, the writ of execution is also served, by which the tenant is ordered to return the leased premises and pay the rent owed. After the lapse of twenty (20) days from the service of the certified copy of the decision with the writ of execution, enforcement may take place and the landlord may proceed with the eviction of the tenant. According to the law, the order for the return of the leased premises is enforceable also against any person deriving rights from the tenant or holding the leased premises on his behalf, even if there is no specific reference to that effect in the order.

It should be noted that the tenant has the right to file an opposition against the order within a deadline of fifteen (15) working days from the service of the decision upon him. The grounds of opposition must be directed against the legality and validity of the contested order for the return of the use of the leased premises. By way of example, a ground of opposition is established, among others, where the body of the order for return makes no reference whatsoever to the fact that an extra-judicial notice was served on the opposing party, or where the substantive conditions on which the claim for return of the leased premises is based are disputed, e.g. proof that no rent is owed due to settlement. However, the filing of the opposition by the tenant does not suspend the enforcement of the order for return; an application for suspension by way of interim measures must be filed concurrently.

If the tenant does not give way and does not hand over the leased premises, then the procedure of enforcement of the judgment for tenant eviction commences. In practice, this means that the bailiff goes to the property and proceeds with the eviction of the tenant by changing the locks. This constitutes the final stage of the eviction procedure, in case of non-compliance by the tenant with the order for the return of the leased premises and payment of rent.

3. Enforcement

In this case, the bailiff proceeds with the eviction without the tenant’s consent being required, and the landlord changes the locks of the property (residential or commercial premises), lawfully depriving the tenant of access.

The cost of the procedure varies depending on the steps to be followed, as well as on the amount of the agreed rent, which determines the jurisdiction of the court (Magistrate’s Court or Court of First Instance).

How is a tenant evicted by filing a lawsuit for the return of the leased premises?

There are certain cases in which the conditions for the issuance of an order for payment of rent and return of the leased premises are not met and a different procedure must be followed. The landlord may, in this case, file a lawsuit against the tenant seeking the return of the leased premises, with a legal basis in Article 597 of the Civil Code (AK) or Article 66 of the Introductory Law of the Code of Civil Procedure (EisNKPolD). In contrast to the procedure of issuing an order for the return of the leased premises and payment of rent, a lawsuit for the return of the leased premises is a more time-consuming procedure, as appearance before the court is required and, in many cases, a wait of several months until the relevant judgment is issued.

The conditions that must be met, as well as the procedure for filing a lawsuit for the return of the leased premises, are summarised as follows:

1. Rent owed. The legal basis of the lawsuit filed is the delay in payment of rent. As analysed in the case of the order for the return of the leased premises, default in the payment of rent must exist; default is constituted when the tenant fails to pay the rent on time, on the agreed date, that is, that the parties usually stipulate in the lease agreement. For the lawsuit for return to be sufficiently specific, it must therefore state, with regard to the tenant’s default, that a specific agreed date had been stipulated between the parties for payment, or, where no such date had been provided in the lease agreement, that a notice was served on the tenant.
2. A lease, which need not be evidenced in writing. In contrast, therefore, to the procedure for an order for return, proof of the lease through documentary evidence is not a necessary precondition. The lawsuit, that is, may lead to the eviction of the tenant even without written evidence, or even where such evidence is defective.
3. Written extra-judicial notice. As in the procedure above, the service of the extra-judicial notice must take place through a bailiff. However, in the case of the lawsuit for the return of the leased premises, the lease itself may be terminated directly by the written extra-judicial notice, whereas this is not the case and must not occur with the order for return. It should be noted that the requirement of termination of the contract does not apply to the lawsuit having as its legal basis Article 66 EisNKPolD, since in that case the contract must be in operation.
4. Filing of the lawsuit before the competent court and issuance of the judgment. The exclusive criterion for determining whether a lease dispute falls within the substantive jurisdiction of the Magistrate’s Court or the Single-Member Court of First Instance is the amount of the agreed monthly rent. Consequently, jurisdiction for filing a lawsuit for the return of the leased premises lies with the Magistrate’s Court of the place where the leased premises are located, if the monthly rent is up to €600.00, while if the rent exceeds that amount, jurisdiction lies with the Single-Member Court of First Instance. Upon the filing of the lawsuit, a hearing date is set on which the oral hearing takes place with the appearance of both opposing parties. At the final stage of this procedure, the judgment for the return of the leased premises is issued. Once the judgment becomes final (with res judicata), it may be enforced, that is, a bailiff may go to the property, change the locks, and remove the tenant.

The specific issue of the existence of two legal bases for the lawsuit for return of the leased premises that may concern us as lease lawyers:

As already mentioned, the lawsuit for the return of the leased premises may have two different bases. One legal basis is found in Article 597 AK, according to which: “If the tenant delays payment of the rent, in whole or in part, the landlord is entitled to terminate the lease at least one month in advance, in the case of a lease whose duration is agreed at one year or more, and ten days in advance in other leases“, while the other legal basis is found in Article 66 EisNKPolD, according to which: “If the tenant delays the rent due to recalcitrance, the landlord has the right to seek the return of the leased premises while the lease is in force…“.

It follows from these two provisions that, from the same factual circumstance — that is, the tenant’s default in the payment of rent — two rights of the landlord arise, each of which leads to a different objective and produces different legal effects. On the one hand, the right under Article 597 AK (termination of the lease) brings about the termination of the lease relationship for the future, while the right under Article 66 EisNKPolD is directed simply at the return of the leased premises, without its exercise causing the lease to come to an end. The lease, in this latter case, is terminated only upon the return of the leased premises, either voluntarily or through enforcement under the court judgment.

As noted above, in the lawsuit under Article 597 AK, the landlord must have terminated the lease, while in the lawsuit under Article 66 EisNKPolD no termination must intervene, since the contract must be active and the filing of the lawsuit does not amount to termination. A further difference is identified in the case where the rent owed is paid. Where all the rent in arrears is paid by the end of the oral hearing before the first-instance court, the proceedings are dismissed in respect of the lawsuit under Article 66 EisNKPolD. This, however, does not apply to the lawsuit under Article 597 AK, where, if the tenant pays the rent within the one-month deadline, the effects of the termination are nullified.

The prevailing view is that the two options are set out in the law cumulatively, in the sense that the exercise of one does not preclude the exercise of the other. However, the cumulative joinder of the two options in the lawsuit is precluded on the logic that they are contradictory, since one presupposes the existence of an active lease while the other presupposes its termination. There is, on the contrary, the possibility of the alternative joinder of the two bases, with the principal basis being termination under Article 597 AK and the alternative basis being Article 66 EisNKPolD. A good lease lawyer should take care to direct the prayers of the lawsuit on the basis of the prevailing case law currently in force.

What are the differences between an order for the return of the leased premises and a lawsuit for the return of the leased premises?

The difference between the two procedures, namely the issuance of an order for the return of the leased premises and payment of rent and the filing of a lawsuit for the return of the leased premises, has already been demonstrated. In summary, the most important practical and substantive differences between the two are set out below:

1. Termination. By the filing of the lawsuit for the return of the leased premises, the lease agreement is terminated. By contrast, in the order for the return of the leased premises, the contract must not be terminated, neither by the service of the extra-judicial notice nor by the very application for the issuance of the order for return.

2. Enforcement of the judgment. The judgment on the lawsuit for the return of the leased premises must become final (with res judicata), that is, the deadline for the filing of legal remedies must have elapsed, in order for it to be enforced against the tenant. By contrast, the order for the return of the leased premises constitutes an enforceable title and can be enforced immediately upon the lapse of the twenty (20)-day deadline.

3. Time required. The procedure of the lawsuit for the return of the leased premises is a time-consuming procedure, as a hearing date is set and an oral hearing follows. Moreover, particularly important is the fact that there may be considerable delay in the issuance of the judgment. Conversely, the order for the return of the leased premises is characterised by brevity, as the procedure is conducted upon the submission of documentary evidence — that is, there is no oral hearing — while even the issuance of the order for return takes place within a short period of time.

4. Cost. Comparatively between the two procedures, the lawsuit for the return of the leased premises is more costly, given that, in addition to the extra-judicial notice, it requires the filing of a pleading and appearance at the oral hearing, while the submission of further documents, such as affidavits, is not excluded. By contrast, the procedure of the order for the return of the leased premises is more economical, as no procedure before the court is required, while the documentary evidence and the procedure followed are strictly defined.

Frequently asked questions about tenant eviction

Is it possible to include debts arising from shared expenses in both procedures for the return of the leased premises?

The common denominator of the two procedures for the return of the leased premises and payment of rent is the debt arising from rent in arrears, that is, the tenant’s default. In both prescribed procedures — namely, the issuance of an order for the return of the leased premises and payment of rent (express procedure) and the lawsuit for the return of the leased premises and payment of rent — the landlord has the option to seek payment, in addition to the rent in arrears, of the amounts owed to public utility organisations, e.g. electricity, water, as well as debts arising from shared expenses.

What can a landlord do who has no lease agreement with the tenant who owes rent?

For a landlord to proceed with the procedure of issuing an order for the return of the leased premises and payment of rent (express procedure), a necessary precondition is the existence of written proof of the lease (lease agreement and electronic registration in the taxis system). This means that a landlord who does not have a lease agreement in his possession may proceed with the eviction of the tenant by following the procedure of the lawsuit for the return of the leased premises and payment of rent. In this case, the existence of written proof of the lease is not a necessary element, and the landlord is therefore not prevented from seeking the return of his leased premises and the payment of the rent owed.

What option is available to a landlord whose lease agreement with the tenant has expired, while the latter owes rent?

As a rule, the procedure of issuing an order for the return of the leased premises and payment of rent (express procedure) requires the existence of an active lease, in contrast to the lawsuit for the return of the leased premises and payment of rent, where an active lease is not a necessary precondition. However, it has been held by case law in several instances that, provided that the commencement of the lease is evidenced in writing, the landlord may proceed with the eviction procedure by means of an order for the return of the leased premises, even if the lease is not active (Thessaloniki Single-Member Court of First Instance Decision No. 14517/2019). In any case, special handling by the appointed lease lawyer is required in cases such as these, where the case law is divided.

What happens if the tenant pays the amounts owed after the lapse of the 15 days, or pays them within the deadline but only partially?

Where the tenant pays the entire amount of his rent debts, the eviction procedure is interrupted, and if an order for return has been issued, it may be annulled following the filing of an opposition by the tenant. If the tenant does pay the rent owed but after the lapse of the 15 days, then the eviction procedure proceeds normally against him. If, finally, the tenant pays only part of the rent owed and not the entire amount, then the procedure proceeds and an order for the return of the leased premises and payment of rent is normally issued.

What happens if the tenant dies after the service of the extra-judicial notice upon him, or dies after the service of the order for return upon him?

If the tenant dies after the service of the extra-judicial notice — that is, before the application for the return of the leased premises and rent has been filed — the issuance of the order against him is not possible. In this case, the landlord must direct the application against the tenant’s heirs. If, despite this, an order for the return of the leased premises is issued against the deceased, then it is non-existent. If the tenant dies after the service of the order for the return of the leased premises, then Article 146 of the Code of Civil Procedure (KPolD) applies and the twenty (20)-day deadline is interrupted and runs anew with fresh service on the heirs of the deceased tenant.

What is the fate of the tenant’s belongings located inside the leased premises in the event of enforcement of the order for the return of the leased premises?

Where there are belongings inside the leased premises which belong to the tenant, the bailiff records the items found within the premises. The landlord is obliged to safeguard them for a period of six (6) months from the date of the eviction from the leased premises. If the tenant does not come to collect them, then, after the lapse of the six-month period from the eviction, the items may either be sold or removed and destroyed.

• See also article Professional – Commercial Leases
• See also article Payment Order
• See also article Divorce
• See also article Certificate of Inheritance
• See also article Renunciation of Inheritance by a Minor
• See also article Joint Custody of a Child