Lease Judgment
Wolfenson Lawyers provides legal advice to end a contractual lease relationship.
One of the most common civil contracts is that of leasing, both due to its socio-economic significance and the recurring need to generate profits from our property.
There are many controversies that may arise regarding this contract, it is for this reason that we protect your rights as lessor or lessee.
Our firm focuses on our clients, giving them an effective and timely solution.
Here is a legal guide to provide you with guidance on the lease:
For what type of properties does the law on urban land leases apply?
The law applies to urban real estate . It does not include properties over one hectare and that are destined or used for agricultural , livestock or forestry activities . Neither does the law of leasing apply to fiscal properties , homes that are leased furnished for seasons not exceeding three months for the purpose of rest or tourism , nor to hotels or residential properties. It does not apply to parking lots , nor does it apply to homes that are leased with a promise of sale , a system known as leasing.
Is it necessary to leave the lease in writing?
Chilean law does not require writing the contract . However, it is advisable to keep it in writing , especially to avoid conflicts and to prove violations in court . A contract before a notary , can contain the value of the rent , the form of adjustment, the duration of the contract and in general any other clause that both parties agree on. You can also incorporate the inventory of the assets that make up the property.
What types of rental contracts are there?
There are contracts , temporary contracts agreed month by month , indefinite contracts with no end date and fixed-term contracts , which establish a date for the end of the lease.
What is eviction?
The eviction is that one of the contracting parties of the lease communicates in advance to the other its intention to terminate the contract.
How can the lessor enforce the eviction in the cases of contracts agreed month to month and indefinite duration?
In these cases, the eviction given by the lessor may only be carried out judicially or by personal notification made by a notary.
The eviction period is two months , a period that is counted from its notification, and will be increased by one month for each full year that the tenant had occupied the property. Said term plus the increase may not exceed, in total, six months . The lessee, once the unilateral decision of the lessor is communicated to him, can restitute the real property before the end of the term and is only obliged to pay the rent until the day he leaves the property.
How does eviction operate in fixed term leases?
If it is a contract for a fixed term not exceeding one year, and the landlord wants to end it sooner , he can only do it judicially , through a lawsuit. The tenant has a period of two months to leave the property , from when the legal action is notified and must pay only until the day he leaves the property.
Can the tenant sublet?
In the lease contracts for real estate destined to the room with a fixed term of more than one year, the power of the lessee to sublet will always be understood as implicit, unless otherwise stipulated in the same contract.
Up to what moment must the tenant pay rent?
You must pay the rent and common expenses if any until you make the restitution of the property.
What court is competent to process the trials for rent?
The proceedings are brought before civil courts or courts of letters of common jurisdiction. These courts see the following matters: eviction of the contract , termination of the lease , restitution of the property by expiration of the time stipulated for the duration of the lease , restitution of the property by extinction of the right of the lessor , compensation for damages that the lessor or the lessee , and other cases that refer to the other issues arising from these contracts.
What happens to basic services while the trial is pending?
In cases of unpaid rent judgment , service companies can be notified so that the defendant is responsible for said debts, and avoid other damages to the owner.
What is Law 21,461, also known as the "Give me back my house Law"?
To adequately contextualize, the feeling of insecurity with which real estate tenants have lived daily due to a problem that deepened in the pandemic period in Chile, including extensive eviction proceedings, release demands and delinquency situations that illustrate the effects of the same context, are some of the key points that led to the publication of Law No. 21,461
Law 21,461 incorporated different measures and procedures to facilitate when demanding the termination of the lease by the lessor, especially due to default or default by the lessee. Even applicable for cases of precarious or unauthorized use.
Our lawyers highlight the following aspects or central points of this new regulation:
– The establishment of a new order for payment procedure for the payment of rents owed.
– The presumption of existence of a contract.
– The application to precarious loan actions and precarious action.
– Deadlines contemplated and other conclusions.
– The incorporation of the precautionary measure of early restitution of real estate.
Contextualizing ourselves, we must consider that "the urban property leasing process is a declaratory, special and plenary civil process, suitable for the processing of any action derived from the execution of a property leasing contract governed by the LAU" (Law As such, the new reform comes to reinforce the rights of the owner in order to achieve the restitution of his leased property with unpaid rents, granting him a series of benefits when seeking his objective and conferring to our specialist lawyers more tools to meet our objective.It is important to have an adequate lease contract to facilitate its compliance. We invite you to count on the expertise of Wolfenson Abogados for the preparation of said rental contract.
What is the new precautionary measure granted by Law 21,461?
Recapitulating, and from a general prism, the norms by which the situation that concerns us in the comment are regulated by those contemplated in Title VI of Book III of the Code of Civil Procedure, Laws No. 18,101 and the new one already mentioned . Thus, we are clear that, as a general rule, beyond this legal reform that establishes certain exceptional issues, the procedure regulated by Law No. 18,101 indicates our expert lawyers in rental lawsuits, must be applied to the matters contemplated in its article 7, and under the rules of article 8. It is precisely in this eighth article where this new reform is manifested to us in its numeral 7 bis, which establishes this relevant benefit as a precautionary measure for early restitution of the leased property and the release of the lessee in a situation of delinquency. Provides the following:
“7 bis) At the request of the plaintiff and with the merit of what was done at the hearing, the judge may order the early restitution of the property and the release of the defendant tenant, with the help of the public force if necessary.
This measure will be appropriate in those cases in which the landlord demands the termination of the lease and the restitution of the leased property, because it has been partially destroyed or rendered useless for use as a result of the action or omission of the lessee in his care. In all cases, it will only be necessary to prove, based on the background information presented together with the claim and those discussed at the hearing, the existence of a serious presumption of the right claimed.
When deemed necessary to access the early restitution of the leased property, the judge may demand a security from the plaintiff, against which the defendant tenant will be compensated for the damages suffered with the launch, if the final sentence of the trial does not condemn him. to their restitution."
This new special precautionary measure manages to position itself as one of the most intense, if we look at those set forth in article 290 of the CPC. The foregoing is based on the granting of a greater degree of complexity in its configuration if we understand the repercussions of what is proposed.
When does the precautionary measure of immediate delivery of the leased property proceed?
The measure will proceed in cases where the owner or landlord demands the termination of the contract and jointly requests the restitution of the leased place, for having been partially destroyed or rendered useless for use as a result of the action or omission of the lessee in his care. . The judge, when analyzing the arguments raised, will determine them appropriate at the moment that the existence of said serious presumption of damage to property is effectively proven with the evidence provided by the client.
What is the order for payment procedure created by Law 21,461 (law give me back my house)?
Wolfenson's lawyers explain that the second figure contemplated by the reform covers a new order for payment procedure for the collection of rental income; Law No. 18,101 is modified to be incorporated after article 18, Title III bis with the title: "Of the order for payment procedure for the collection of rental income"
Its regulation is reflected within the same articles, from letters A to K, beginning (article 18-A) with those requirements necessary for the proper presentation of the claim in the procedure, within those that are considered jointly to the individualization of parties, information on the real estate and the warning to the delinquent tenant for the payment under the sanction that, "he is considered sentenced to the payment of the claimed obligation" and "the launch materializes". The plaintiff will have a period of 10 days to correct the lack of requirements, under penalty of having it as not presented.
Regarding the foregoing, we must bear in mind that the Law clearly indicates the obligation of the Court to duly justify its decision of inadmissibility; and also, that in the face of said resolution, only the appeal for reversal will proceed before the same Court, without failing to consider that in the same article 18-B it is indicated: "The declaration of inadmissibility will not prevent the creditor from demanding the same obligation in the declarative procedure provided for in this law.
In the order for payment procedure, the joint exercise of the action for the collection of rental income and the actions for eviction and restitution that have a basis other than non-payment of rental income and accounts owed for common and consumption expenses will not proceed. of the leased property."
Once the claim is admitted for processing, the debtor will be ordered to pay his obligation within a term of 10 days under the aforementioned warning. The same term is contemplated for the realization of the launch. It is therefore a priority to have the judicial and legal representation of a Wolfenson lawyer to adequately attend to his civil rights.
What options does the tenant sued in order for non-payment of rent have?
The lawyers specialized in lease trials at Wolfenson Abogados, detail that the debtor may express three options:
1. The subject proceeds to the total payment of his obligation, before the previously established period, which will end the procedure; if it is not complete, the procedure will continue.
2. The debtor may oppose the order for payment, indicating his arguments and "the factual and legal grounds of the allegations and exceptions he opposes"
3. The debtor, acting by default, does not manifest any action and is prepared to comply with the provisions of article 18-C.
Finally, it is established that "the order for payment procedure will only be appealable, for the sole return effect, the resolution that is pronounced with respect to the debtor's opposition."
What is the presumption of existence of a contract incorporated by Law 21,461?
The Law give me back my house, on this aspect modifies article 20 of Law No. 18,101, stating:
"In the lease contracts governed by this law that are in writing, the signatures of the contracting parties will be authorized by a notary public, who must request the titles that enable the lessor to assign the use of the property with respect to which the contract falls. These contracts authorized before a notary will constitute a sufficient precedent to exercise the monitoring claim in accordance with the provisions of article 18-A.
When the contracts are not in writing, it will be presumed that the rent is the amount consigned in the deposits or payment documents for at least three consecutive months and, in the event that these do not exist, it will be presumed that the rent is the one declared by the tenant."
To prove the existence of the lease, the contracts that are in writing must necessarily have the signatures of the parties authorized by a notary public. What is relevant, argue our Wolfenson lawyers, will be that these contracts authorized before a notary will constitute a sufficient antecedent (founding title) to exercise the monitoring demand for collection. However, if this contract does not exist, the amount of the rent will be presumed for those consigned in payment documents for at least three consecutive months; and, in the absence of the latter, by the one declared by the lessee.
Does Law 21,461 apply to precarious loan actions and precarious action?
Indeed, as our lawyers from Wolfenson Abogados point out, Law 21,461 applies to lease or lease trials but also to precarious trials. Said law provides in the new article 18 letter K: "The rules of this Title will be applicable, as pertinent, to precarious bailout actions that seek the restitution of the property and to the precarious action established in article 2,195 of the Civil Code."
It is a novel situation that comes to reform the panorama contemplated by the most common judgment, within the protective actions of the domain. In this way, article 2 of the reform establishes: "Delete in numeral 6 of the second paragraph of article 680 of the Code of Civil Procedure the expression "and precarious loan", meaning therefore that a precarious claim may be filed in this new procedure monitoring. For the above, it is always important to have the legal advice and legal representation of a specialist lawyer from Wolfenson Abogados.
What are the deadlines contemplated by the Law give me back my house?
Finally, we must not stop considering different points that in a certain sense limit and provide another perspective of the aforementioned. We previously indicated that the judge may agree to the eviction of a property with the release of the public force, with the mere presentation of the demand, an issue that previously did not arise until the sentence was handed down and that later it was notified as well as its subsequent incidental compliance.
This new set of regulations gives us a glimpse of a procedure that contemplates a period of 10 days under warning of setting up said launch. Without a doubt, it is an attractive proposal that enjoys evident speed; however, this pitch must always be made through a judicial catcher.
What happens if the tenant owes consumption expenses for basic services, is it possible to be held responsible for these debts?
That is correct, article 14 of Law 18,101 provides:
Article 14.- In the lawsuits referred to in this Title in which the delivery of the property is requested, the landlord may notify the demand to the companies that supply gas, electricity or potable water, and in such case the defendant will be the solely responsible for consumption while the property is occupied by himself or his dependents. Companies may not exempt themselves by claiming ignorance of the debtor's address.
In accordance with the foregoing, it is necessary that the claim filed in the lease trial request that these companies be notified with the resolution that the court issues in the trial, a minister of faith will proceed to notify the service companies basic
What is the rental contract in Chile?
The answer about what a rental contract is found in article 1915 of the Civil Code, defines it as "a contract in which the two parties are mutually obligated, one to grant the enjoyment of a thing, or to execute a work or lend a service, and the other to pay a determined price for this enjoyment, work or service.”
From this definition, the most common use of this contract in our country is the lease on a property, which consists of granting the enjoyment of a property to one of the parties, this party having to pay a certain price to the party that grants the enjoyment of the property.
Is it necessary for the rental contract to be in writing in Chile?
Wolfenson's lawyers indicate that our legislation does not require notarization of the rental agreement. However, based on the modification established by Law 21,461 of the year 2022 ("Give me back my house" Law), regarding the procedure for terminating the lease contract for non-payment of rents, it establishes that in the new article 20 of the law 18,101, Law that Sets Special Rules on Urban Property Leasing, "These (written) contracts authorized before a notary will constitute a sufficient precedent to exercise the monitoring claim." This means that, when there is a contract deed, the lease termination procedure will be a quick procedure where the defendant will have a period of 10 days to make the payment of the owed rents, or the defendant's release (eviction) will be decreed, even being able to request, in the face of the refusal of his voluntary departure, the help of the public force. For the preparation of this contract it is essential to have the specialist legal advice of Wolfenson Abogados.
How can you terminate a rental contract in Chile?
To terminate a lease, for any of the following reasons:
to. Compliance with the term indicated in the contract. (Generating the notification in the manner provided by the contract, in terms of the formality and terms of said notice).
b. Causes established in the same contract. (Ex: Use of the property for purposes other than the lease, Not keeping the property in optimal conditions)
c. Termination of the right to lease by the landlord. (Ex: Landlord sells the leased property).
d. Non-payment of rents, common expenses and basic service accounts.
Regarding the non-preservation of the leased property in optimal conditions, when a partial destruction is generated or the property is left unusable for use, by some action or omission on the part of the lessee, the modification established by the Law "Give me back my house”, states that “the judge may order the early restitution of the property and the release of the sued tenant, with the help of the public force if necessary.”
Is the representation of a lawyer or lawyer mandatory, to sue or defend myself in a lease termination trial for non-payment of rents?
Yes, as Wolfenson's lawyers indicate, our legislation establishes the obligation to be sponsored by a lawyer, in the presentation of the demand and defense in lawsuits for the termination of the lease contract.
What requirements does the demand for termination of the lease have?
The lease application must state:
1. Full name, profession or trade and address of both the plaintiff and the defendant, the court before which it is filed according to the rules of jurisdiction established in the Organic Code of Courts.
2. The date of the lease contract must be detailed, the duration it had and the months that the defendant has stopped paying, indicating the total amount of the debt.
3. The means of proof that the plaintiff intends to use must be indicated in the claim. In case of not having the rental contract, it is necessary to accompany the payment receipts, transfers that the defendant has made paying the rents and a list of witnesses. They may only testify up to four witnesses from those who appear on the list accompanied by the claim, they cannot testify other witnesses. The defendant may present a list of witnesses up to 12:00 noon on the business day prior to the hearing. Remember that this hearing will not be set if you meet the requirements of a payment procedure, where a sentence will be handed down without further ado after the claim has been filed. Which can be appealed before the Court of Appeals by our lawyers specializing in civil trials.
How is the demand for rent filed and how is the tenant notified? Presumption of right of domicile of the defendant?
In a rental trial, once the claim has been filed through a Wolfenson lawyer, and in the event that the term is not due to a breach of the tenant and a payment order, a summary trial will be initiated where the court sets a hearing date. the fifth business day of notification. The second numeral of article 8 of Law 18,101, establishes that the notification of the demand will be made in accordance with the norm indicated in article 533 of the Code of Civil Procedure, establishing a presumption of right of the domicile of the defendant, which will correspond to the leased property. Consequently, the copy of the complaint and the resolution that summons the hearing can be delivered to any adult person who is in the place and even if no one is in the place a notice can be posted on the door notifying the demand, with specification of the parties, matter of the cause, the judge who hears it and the resolutions that are notified. Our lawyers in Santiago and Las Condes have a network of prominent and efficient judicial receivers, which will allow prompt notification of demands in this type of rental lawsuits.
How does the conciliation and evidence hearing work in a rental trial?
After the five days of the notification or the next business day if the fifth day falls on a non-working day, a conciliation hearing will be held, if there is no conciliation, the case is received on trial once the case has been rendered, it remains in the state of being failed. . The court generally in the sentence that ends a rental trial, sets a period of 15 business days from the notification of the sentence to make the eviction, and the defendant for serious reasons may request an extension of up to 30 days.
How to demand compliance with the sentence ordering the eviction?
First of all, the judgment ordering the eviction can be appealed within a period of 10 days from the time it has been notified to the parties. After that time, if the defendant refuses to voluntarily leave the property, the plaintiff's attorney, will request the court to comply with the ruling; Once the defendant's position to comply with the sentence has been verified through the certification carried out by a judicial receiver, the plaintiff through his lawyer can request that the Carabineros de Chile officiate in order to carry out the forced eviction, a procedure that will be carried out through a judicial receiver accompanied by officers of the Carabineros, and sometimes by the plaintiff lawyer.
Wolfenson Abogados provides excellent legal advice and legal representation in matters of real estate and property leasing for individuals and companies.
Links of interest on Legal Advice on Leasing Law :
2.- Leasing of Urban Properties
4.- Ley 21.461 (Give my home back)
5.- Legal Report Give my home back
Wolfenson Lawyers. Chile Law Firm.
If you need more information and legal advice regarding the lease contract and judgment, we invite you to contact our lawyers in Santiago. We are located at Av. El Golf 40, 12th Floor, in the commune of Las Condes, Santiago de Chile.