Tenant not paying: when does an eviction come with a 15-day preliminary injunction to vacate?

Tenant not paying? See how we run eviction proceedings in São Paulo — and when an injunction to vacate applies.

For the landlord who rents out a property, there are few worse nightmares than the tenant who stops paying and will not leave. The rent is the income that covers the mortgage, supplements a pension or pays the bills — and, when it disappears, the owner keeps bearing the IPTU (property tax), condominium fees and expenses, receiving nothing and unable to use the property.

The good news is that the law does not require the landlord to wait years for the property to be vacated. In certain situations, it is possible to obtain a preliminary injunction ordering the tenant to leave within 15 days, still at the start of the proceeding. The bad news is that this speed depends on specific requirements — and many people are unaware of them, missing the chance to accelerate the recovery.

This article explains when an eviction comes with a 15-day injunction, what the landlord needs to do and what the tenant can still do to avoid leaving. The cost of inaction is monthly and cumulative: every month without acting is another month of an idle property and mounting loss.

What is eviction with a 15-day injunction?

Eviction with a preliminary injunction is the possibility for the judge to order, right at the start of the action, that the property be vacated within 15 days, without waiting for the entire course of the proceeding. The Tenancy Act provides for this injunction in specific situations, as a rule upon a security deposit equivalent to three months' rent posted by the landlord (art. 59, §1, of Lei 8.245/91).

The rationale is balanced: the law accelerates recovery in situations where the landlord's right is clearer, but requires a guarantee (the security deposit) to protect the tenant should they ultimately be in the right. Its purpose is easy to explain: to provide speed without suppressing the right to be heard — the proceeding continues, although possession may be recovered earlier. The 15 days are not the total case duration: the decision, notice and enforcement depend on the case. Court security is distinct from the tenancy guarantee.

In which situations is the injunction available?

The 15-day preliminary injunction to vacate is available in the situations listed in the law (art. 59, §1, of Lei 8.245/91). Among the most relevant in practice is the failure to pay rent and charges in a tenancy that has none of the guarantees provided for by law (security, a personal guarantee, rent-guarantee insurance or fiduciary assignment of investment-fund units). Under ground IX, the absence may result from no guarantee having been agreed, its termination or a request for release.

In other words: the landlord who rented without a guarantee and faces default may, where the requirements are met, request a preliminary order to vacate. There are also other grounds in the law (such as the termination of certain contracts and specific situations). The practical reading is straightforward: whether or not the contract has a guarantee directly affects the speed with which the property can be recovered — which requires examining its current status. An existing guarantee does not exclude every interim remedy, but prevents direct reliance on ground IX while it remains in force.

Can the tenant avoid eviction by paying?

Yes. Even in the eviction action for non-payment, the tenant can avoid being removed by paying off the debt — this is the so-called cure of the default (art. 62 of Lei 8.245/91), which covers rent, charges, penalties and expenses, within the statutory time limit and conditions. Art. 62(II) provides for 15 days from service; for ground IX, art. 59(3) allows full payment into court within the 15-day period for vacating. It includes sums due up to deposit, interest, costs and legal fees; the benefit cannot be repeated if used in the 24 months before the claim. Any top-up follows the law.

For the landlord, this means the purpose of the action can be twofold: either receive what is owed, or recover the property — and the action often ends up unlocking the payment. For the good-faith tenant who has faced hardship, it is a way out that avoids losing the home. Knowing this rule helps both sides decide with greater clarity.

A hypothetical example: Ms. Cecília's tenancy without a guarantee

In a hypothetical example, Ms. Cecília rented out her apartment without requiring a guarantor, security deposit or rent-guarantee insurance — she "trusted the tenant". After four months without receiving any payment, the debt grew and the tenant showed no sign of either paying or leaving.

Because the tenancy was without a guarantee, the case fell within the injunction ground of art. 59, §1. By filing the eviction action for non-payment and posting the security deposit of three months' rent, Ms. Cecília was able to seek an order to vacate within 15 days, still at the start of the proceeding — rather than waiting for the full course of the case. The tenant, in turn, would have the opportunity to cure the default by paying what was owed. This illustrates a procedural option, not a real case outcome or a guaranteed timetable.

The most common (and costly) mistakes

• Waiting months "to avoid a headache", letting the debt grow.
• Not knowing that a tenancy without a guarantee opens up the injunction ground.
• Prolonging informal collection without assessing legal measures where needed. Negotiating is not itself a mistake.
• Overlooking the security deposit required for the injunction.
• Trying to recover the property "on your own", changing the locks or cutting off the water — unlawful conduct.
• Failing to formalize contracts with adequate guarantees when renting out.

Checklist: do you meet the conditions for a preliminary-injunction eviction?

• Is the tenant in default on rent and charges?
• Is the tenancy currently without any guarantee under art. 37?
• Can you post the security deposit of three months' rent?
• Do you have the contract and a statement of the debt organized?
• Is there documented collection notice? Prior demand is not a universal condition for a non-payment eviction claim.
• Has the tenant's statutory right to cure the default been assessed? It does not depend on the landlord's preference.

Frequently asked questions about eviction with a 15-day injunction

When does the judge grant a 15-day order to vacate?

Under the grounds in art. 59(1) of Law 8,245/1991, with court security equal to three months' rent posted by the landlord. Ground IX requires non-payment and no guarantee under art. 37, because none was agreed, it ended or release was requested. The judge must assess the conditions: the 15 days are for vacating after the relevant notice, not a promise of a decision or recovery within 15 days of filing.

Can the tenant avoid eviction by paying the debt?

Under art. 59(3), for ground IX, the tenant can avert termination and the injunction by depositing the full debt with the court within the 15-day period for vacating. Art. 62(II) also provides for curing within 15 days of service. The deposit includes rent and charges due up to payment, enforceable penalties, interest, costs and legal fees. The benefit cannot be repeated if used in the 24 months before the claim; any top-up follows the statutory conditions.

Can I change the locks to remove the tenant who is not paying?

No. Changing locks, cutting services or removing belongings to force the tenant out may expose the landlord to liability. Without voluntary surrender, compulsory recovery must follow eviction proceedings and the court order; the debt does not authorise self-help.

In São Paulo, where do I file the eviction action?

The claim is brought before the State Courts, normally where the property is located, subject to a valid contractual choice of another forum (art. 58(II) of Law 8,245/1991). Where available, the injunction should be justified in the initial claim with the lease, debt statement and relevant documents.

When should I consult a lawyer to recover my property?

Once non-payment is confirmed, the lease, guarantees, debt and alternatives can be assessed. A lawyer examines the legal ground, documents, court security and the possibility of curing the default. Early review helps organise the case but does not guarantee a recovery date or payment.

Assessing the conditions for recovering possession

Many landlords live with default for months because they believe eviction is always slow. In many cases — especially in tenancies without a guarantee — the law offers a far swifter path, with the 15-day preliminary injunction to vacate. Knowing about this option helps in choosing measures but does not guarantee a recovery date or payment.

At Falchet e Marques Sociedade de Advogados, a law firm in São Paulo (Av. Paulista), we file eviction actions, assess whether the 15-day injunction is available and structure tenancy agreements with the right guarantees — to manage tenancy risks.

Talk to our team on WhatsApp: +55 11 95901-1854 — has your tenant stopped paying? Send us the contract and the payment history so we can assess the eviction and the possibility of an injunction.