Eviction action: when it applies, how it works and how quickly you can repossess the property?

When a lease goes wrong — the rent goes unpaid, the term expires and the tenant does not leave, the contract is breached — the landlord needs a safe and lawful response. That response has a name: the eviction action. And it is worth saying from the outset what you cannot do: changing the lock, cutting off the water or removing the tenant's belongings on your own is illegal and may expose the owner to liability.

Repossessing the property necessarily goes through the courts — but, contrary to what many think, it can be quick when properly handled. In this guide, you will understand when the eviction action applies, how eviction for non-payment works, what a no-cause notice to quit is, when an interim order is available and how quickly you can repossess the property — with a practical example.

When does the eviction action apply?

The Tenancy Act 8.245/1991 provides for several grounds for the landlord to repossess the property. The main ones are:

• Non-payment of rent and charges (art. 9, III) — the most common.

• Contractual or statutory breach (improper use, prohibited sub-letting, damage to the property, etc.).

• Expiry of the term in a non-residential lease, with the notice to quit of the contract running for an indefinite term (art. 57).

• Repossession for own use or for family members, in the cases allowed by law.

• Breach of an agreement to vacate, among others.

The ground chosen determines the procedure, the time limits and the possibility of an interim order. For this reason, the first step is to identify the cause of repossession precisely — a mistake here can delay the whole proceedings.

How does eviction for non-payment work?

It is the most frequent ground. Based on art. 9, III, and art. 62 of the Tenancy Act 8.245/1991, the landlord files the action supported by an itemised calculation of the debt (overdue rent and charges).

The tenant, however, has a way out: curing the default (purga da mora). The tenant can avoid termination by paying the updated debt — rent, charges, penalty, court costs and lawyers' fees — within the time limit for the defence. It is a right provided for by law. But note: curing the default requires payment of the full amount; paying in part or merely proposing instalments is not enough (as the saying goes, “he who pays badly pays twice”). And if the contract has no security (guarantor (fiança), cash deposit (caução), etc.), the landlord can seek an interim possession order right at the outset, as we will see.

What is a no-cause notice to quit in a commercial lease?

The no-cause notice to quit (denúncia vazia) is the landlord's ability to repossess the non-residential property without having to justify the reason — but only when the contract is for an indefinite term. It works like this: once the fixed term expires, if the tenant remains for more than 30 days without opposition from the landlord, the contract is extended for an indefinite term (art. 56, sole paragraph). From then on, the landlord can serve written notice to quit, granting 30 days for vacating the premises (art. 57).

There is, however, an important limit: if the tenant was entitled to a commercial lease renewal action and exercised it within the deadline (between one year and six months before the end of the contract), the no-cause notice to quit does not apply — the business premises (goodwill) are protected. It is the tension between the landlord's right to repossess and the entrepreneur's right to renew and protect the goodwill — a matter that deserves careful analysis in each case.

How quickly can you repossess the property?

It depends on the ground, the defence and the court district — but the law offers a fast route in several cases. The Tenancy Act 8.245/1991 (art. 59, § 1) allows an interim possession order within 15 days, on a cash deposit (caução) of three months' rent, in cases such as:

• Expiry of the non-residential lease (item VIII, added by Act 12.112/2009);

• Non-payment when the contract has no security (item IX, added by Act 12.112/2009);

• Breach of an agreement to vacate, the end of a holiday let, among others.

In cases without an interim order, the ordinary procedure is followed up to judgment. For this reason, the strategy — choosing the right ground and applying for the interim order where applicable — directly affects how quickly the property is repossessed. An action that is well documented from the outset is what avoids months of delay.

Practical example: Mr Paulo's leased shop

Mr Paulo leased a shop in São Paulo to a retailer, under a contract with no guarantor and no cash deposit (he trusted the tenant). After a year, the shopkeeper stopped paying the rent and built up four months of debt, without responding to the demands. Mr Paulo considered changing the lock — but, well advised, he learnt that this would be illegal.

Instead, he filed an eviction action for non-payment, supported by the calculation of the debt. As the contract had no security, he applied for (and obtained) the interim possession order within 15 days (art. 59, § 1, IX), on a cash deposit. The tenant had the chance to cure the default by paying everything, but did not do so. Result: Mr Paulo repossessed the shop quickly and recovered the debt — all through the legal route, with no risks. Had he acted on his own, he could have ended up as the defendant rather than the claimant.

The most common (and costly) mistakes

• Taking matters into your own hands. Changing the lock or cutting off services is illegal and can expose the landlord to liability.

• Getting the ground wrong. Non-payment, notice to quit and breach follow different procedures; the mistake delays everything.

• Failing to apply for the interim order where applicable. In several cases the premises can be vacated within 15 days — not applying is a waste of time.

• Poorly documenting the statement of claim. Without the calculation of the debt or proof of the notice, the proceedings stall.

• Ignoring the tenant's renewal right. If the goodwill is protected, the no-cause notice to quit does not work.

Checklist: before filing the eviction action

• Identify the correct ground (non-payment, notice to quit, breach, own use).

• Gather the contract, the calculation of the debt and proof of the notice (as the case may be).

• Check whether there is security under the contract (this affects the interim order in non-payment cases).

• Assess whether the interim possession order (art. 59) is available and the cash deposit required.

• Check whether the tenant is entitled to the renewal action (this affects the no-cause notice to quit).

• Rely on a lawyer to define the strategy and conduct the action.

Frequently asked questions about the eviction action

What is the eviction action and when does it apply?

It is the action a landlord uses to repossess a leased property. It applies in several situations set out in the Tenancy Act 8.245/1991: non-payment of rent and charges (art. 9, III); contractual or statutory breach; expiry of the term in a non-residential lease (notice to quit, art. 57); repossession for own use; among others. The procedure and time limits vary according to the ground. It is the proper route to recover possession — taking matters into your own hands by changing the locks is illegal.

How does eviction for non-payment work?

It is the most common ground. Based on art. 9, III, and art. 62 of the Tenancy Act 8.245/1991, the landlord files the action supported by the calculation of the debt. The tenant, however, can avoid termination through what is known as curing the default: paying the updated debt (rent, charges, penalty, court costs and lawyers' fees) within the time limit for the defence. If there is no security under the contract, the landlord may even seek an interim possession order. Paying in part or proposing instalments is not enough to cure the default.

What is a no-cause notice to quit in a commercial lease?

It is the landlord's ability to repossess a non-residential property without having to justify the reason, when the contract is for an indefinite term. Once the fixed term expires, if the tenant remains for more than 30 days without opposition, the contract is extended for an indefinite term (art. 56); from then on, the landlord may serve written notice to quit, granting 30 days for vacating the premises (art. 57). Note: if the tenant is entitled to the renewal action and exercised it within the deadline, the no-cause notice to quit does not apply.

How long does an eviction action take?

It depends on the ground, the defence put forward and the court district. In some cases, the law allows an interim possession order within 15 days, on a cash deposit (caução) of three months' rent — for example, on expiry of a non-residential lease and on non-payment with no security (art. 59, § 1, items VIII and IX). In others, the ordinary procedure is followed up to judgment. For this reason, the strategy (the ground and the application for an interim order) directly affects how quickly the property is repossessed. A lawyer assesses the best route.

Where is the eviction action for a property in São Paulo filed?

In the court of the place where the property is located, unless the contract designates another forum (art. 58, II, of the Tenancy Act 8.245/1991). So, for a property in the state capital, the action proceeds in São Paulo. The statement of claim must be well supported — with the contract, the calculation of the debt (in the case of non-payment) or proof of the notice (in a notice to quit) — to make the interim possession order possible where applicable. Properly documenting the case speeds up the outcome.

Do I need a lawyer to file an eviction action?

Yes. The eviction action is court proceedings and requires representation by a lawyer. More than that, choosing the correct ground (non-payment, notice to quit, breach), applying for an interim order where applicable and properly documenting the statement of claim make a great difference to how quickly and successfully the property is repossessed. A business and real estate law lawyer in São Paulo conducts the action with the right strategy — and also advises the tenant who needs to defend or cure the default.

Repossessing the property has a legal route — and it can be quick

The eviction action is the safe response when a lease goes wrong. Conducted with the right strategy — the appropriate ground, the application for an interim order where applicable, the well-documented statement of claim — it makes it possible to repossess the property in far shorter time frames than imagined, and without the risks of acting on your own.

For the landlord, knowing the grounds (non-payment, notice to quit, breach) and the mechanisms (curing the default, the interim order) is what turns a deadlock into a solution. For the tenant, it is what makes it possible to put up a defence or cure the default in time. Both sides benefit from guidance.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we work on eviction actions and business and real estate law — conducting repossession for landlords, with the appropriate strategy, and advising tenants on their defence. If you need to repossess a property (or defend an eviction), it is worth acting with proper backing and speed.

Talk to our team on WhatsApp: +55 11 95901-1854 — and repossess (or defend) your property through the proper channel.