30 Jan 2017

Evicting Tenants for Non-payment: English and Italian Procedure

ENGLISH AND ITALIAN PROCEDURE

Eviction is a process that allows a landlord to lawfully remove a tenant from the leased premises. Most of the time eviction proceeding can be a daunting process, so if your tenant is in rent arrears, and you want to start an eviction procedure, you need a legal team able to understand the intricacies of tenancy law. Eviction proceedings are different in Italy and in UK, but both have got specific procedures that must be minutely followed in order to achieve your goal.

Evicting tenants in UK

You must follow strict procedures if you want your tenant to leave your property, otherwise you may be guilty of harassing or illegally evicting your tenants; so it is really important to be helped by a lawyer.

Eviction process can be divided in 4 main stages:

1) A warning letter to tenant to vacate the premises;

2) Issue of a notice seeking possession:

The notice must be served to the tenant  in a special form and give the grounds for eviction. The notice period will be 14 days. After the notice period ends the  landlord can apply to the court for a possession order. The notice is valid for 1 year after the date it was served on you.

3) Possession hearings and order for possession

Landlord must prove to the court reasons to evict the tenant (i.e.grounds for possession).

Grounds for possession are split into two groups:

-mandatory grounds: if proven, the court has to order you to leave

-discretionary grounds: the court can decide if you have to leave

If the landlord proves a mandatory ground, the court must order the tenant to leave, usually in 14 days.

It is important to notice that tenant must have rent arrears on both the following dates: 1)when the landlord gives notice; 2) when the case is heard in court, otherwise the order can not be granted

If the court grants an order for possession (or ‘outright possession order’) the tenant must leave the property before the date given in the order. The date will be either 14 or 28 days after the court hearing. It is also possible to ask the court to evict the tenant with a “warrant for possession” if the tenant doesn’t leave the property by the date given in the order. If the court gives a warrant, the tenant will be sent an eviction notice with a date by when they must leave the property.

4) Eviction notices and bailiffs

If the tenant does not leave the property the landlord will need to fill a specific form ( Request for warrant of possession of land)  to arrange for a bailiff to evict him/her.

Moreover, if the landlord is claiming more than £600  it is possible to speed up the eviction by applying to have the warrant transferred from the county court to the High Court, so an HCEO(High Court Enforcement Officers) will carry out the eviction.

Evicting tenants in Italy

Tenancy in Italy is regulated by the Code of Civil Procedure, L.n.392/1978 (the ‘Fair Rent’ Act) and L.n.431/1998. These laws provide the framework for rental contracts, including the duration of tenancy, rent and rent increases, as well as dispute settlement.

If the tenant is not paying the rent, before to ask the Tribunale the eviction order, it is necessary to send a warning letter to the tenant asking the arrears and warning the tenant about the possibility to start an eviction proceeding if no payment is done.

If the tenant does not reply, or if he/she refuses to pay, the landlord can apply to the court for an eviction order and, at the same time, he/she can ask the court to grant a payment order ( decreto ingiuntivo) concerning the accrued rent and rent that will accrue during the pendency of the proceeding.

The payment order is immediately enforceable, but it can be challenged, if it is not, it becomes final and binding upon the parties.

According to Art. 663 Code of Civil Procedure “If the ground for eviction is non-payment of rent, the plaintiff or his attorney must certify that payment has not been made before the court issues the eviction order. The court may require the plaintiff to post bond before the order is issued”

An eviction proceeding is commenced by service of an eviction notice (intimazione di sfratto) and it must indicate the date of hearing. Between the date of the service and the date of the hearing at least 20 free days must run.

Eviction proceedings, unlike summary ex parte proceedings, are commende by citing the tenant/defendant to appear in court. If the tenant fails to defend a default judgment is automatically entered.

If the tenant does not appear at the hearing or fails to oppose the demand for eviction, the court issues an enforceable eviction order.

If the tenant/defendant appears at the hearing and raises defenses not based on written evidence the court may issue an unchallengeable order of release, with reserve of defendant’s exceptions.

The order is immediately enforceable, but it could be subjected to the offering of a bond.

If the defendant challenges the order and the defenses are based on written evidence or the judge finds that the conditions for  granting the order do not exist, the procedure turns into an ordinary one, so the judge schedules the hearing for discussing the case and assigns to the parties a time limit for filing the documents and the pleadings. The ordinary proceeding ends by judgemnt.

Whether you are considering renting and want someone to review the lease agreement, are currently renting property and trying to protect your tenant rights, or are a landlord seeking the eviction of a tenant, KMLegalNet professionals can guide and hel you. Our team of English-speaking Italian lawyers can assist both local and foreign clients. Thanks to the support of an international network of experienced and skilled attorneys coming from different legislations, KMLegalNet can provide you with all the assistance you need.

Shall you have any questions do not hesitate to contact our Italian Department or send an email to info@kmlegalnet.com

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