This article analyses the ruling of the Provincial Court that ordered the immediate eviction of business premises as by the tenant had failed to pay the waste collection rates in due time pursuant to what was envisaged in the lease agreement. The ruling also overturned the first instance ruling that threw out the eviction application due to failure to pay as the first instance court found that there was no repudiatiory conduct capable of justifying eviction, but rather a mere delay.

Given the first instance ruling, the lessor petitioned for the first instance ruling to be overturned and asked the court to find for the eviction application filed, as the failure to pay the waste collection rates in itself accredits the breach by the tenant of the obligations assumed and this was even more so as there had already been a previous eviction application that had been avoided by late payment of the outstanding amounts.

It should be recalled that there are several recent rulings that establish that the fundamental obligation of the tenant is to pay the agreed rent, as if it is accepted that the delay is not breach of contract, one would be entering into dangerous ground where it would be necessary to specify how many days’ delay can be considered as a mere delay and the number of days when one would be dealing with real breach.

Notwithstanding what is established in the above paragraph, it is true that have also been numerous rulings from the Provincial Courts which has found that failure to pay the rent in the contractually stipulated period is a mere delay and not a contractual breach that can lead to the termination of the lease agreement.

The Supreme Court has finally ended the disparity between the rulings, by declaring that “the proven payment of rent outside the agreed period does not exclude the applicability of the reason to terminate the lease envisaged in the Spanish Urban Tenancy Act (Ley de Arrendamientos Urbanos) and that is true even if the petition is based on the defaulting of a single month’s rent and it has been paid extemporaneously…”.

As the urban lease agreement is for value and commutative, the first obligation of the tenant is obviously to pay the rent. Unless the parties had agreed that the payment for the income occurred as one-off payment, the lease agreement is a continuing obligation and defaulting on a single monthly payment of rent can be grounds for terminating the contract. This criteria has to also be extended to defaulting on amounts that have been assumed or which are the obligations of the tenant pursuant to what has been agreed between the parties.

Therefore, defaulting or the subsequent payment can only be effective if the legislation itself so allows, as is the case of Article 22.4 of the Civil Procedure Act (Ley de Enjuiciamiento Civil), as it regulates the avoidance of eviction by late payment of the outstanding amounts. In fact, and as we have previously indicated, in the case in question, as an eviction petition had been filed prior to this procedure and a Court Order was issued that set aside the eviction action as the tenant had paid the outstanding rent, eviction could therefore not be avoided in these proceedings by paying the outstanding amounts.