Eviction for non-payment: how does it work and how to take back the property?

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

Few situations distress a landlord more than the tenant who stops paying and does not vacate the property. Rent is often an important part of one's income — and each month of default is an accumulating loss. The good news is that the Tenancy Act provides a specific path for this situation: eviction for non-payment.

In this guide, you will understand how the eviction action for non-payment works, what curing the default is (the tenant's chance to pay and stay), when a preliminary eviction order applies and how to take back the property — and collect the overdue amounts — in São Paulo.

How does eviction for non-payment work?

Eviction for non-payment is the action the landlord files to take back the property when the tenant stops paying rent and charges. The basis is in Law 8.245/1991 (art. 9, III, and art. 62). The procedure, in broad terms:

• 1. Filing: the landlord presents evidence of the tenancy, including a written agreement if available, and an itemized debt calculation. Payments, rent, charges, enforceable penalties, interest and indexation must be checked, with a debt recovery claim where appropriate.

• 2. Summons: the tenant may defend the claim or, if legally eligible, cure the default. The deadlines and starting points for the defense and payment must be checked separately.

• 3. Preliminary order (if applicable): without valid lease security, the landlord may request the measure under art. 59, §1, IX, allowing 15 days to vacate, with judicial security equivalent to three months’ rent. The court assesses the requirements.

• 4. Outcome: a valid cure may prevent termination. Otherwise, the court examines the claims and defenses; enforcement follows the legal procedure. Non-payment does not automatically produce an eviction warrant.

Proof of the default and tenancy is central, but does not replace examination of payments, enforceable charges, security, standing and procedural issues. The tenant may raise defenses; filing the agreement alone does not guarantee possession will be returned.

Can the tenant avoid eviction by paying? Curing the default

Yes — and this is a point every landlord and tenant should know. Under art. 62, II, the tenant or guarantor may avoid termination by depositing the full updated amount with the court within 15 days of service of the summons. It includes rent and charges falling due up to the deposit, enforceable penalties, interest, court costs and the landlord’s legal fees: 10% of the amount owed unless the agreement provides otherwise. The statutory conditions must be met; this specific deadline should not be described simply as the deadline for the defense.

There is an important limit: this remedy is unavailable if the tenant has already used it in the 24 months immediately before the action was filed. Repeated late payments do not themselves amount to prior use of this remedy. If the landlord substantiates a shortfall, art. 62, III allows the deposit to be supplemented within 10 days of notification; without the full supplement, the termination claim continues for the difference.

When does a preliminary eviction order apply?

A preliminary eviction order may permit recovery of possession before judgment. Under the specific non-payment ground in art. 59, §1, IX, the lease must lack any valid security under art. 37: cash or property security, a personal guarantee, rent guarantee insurance or fiduciary assignment of investment fund units. Its absence, termination or a request for release must be examined. The landlord provides judicial security equivalent to three months’ rent, distinct from the security for the lease.

The 15 days are the period allowed to vacate, not the time for the court to decide or complete the case. Article 59, §3 permits the tenant to defeat the order under item IX and prevent termination by depositing the full statutory amount within the 15 days allowed to vacate. Other grounds for interim relief have their own requirements. Lack of lease security does not guarantee speed; appropriate security also protects against unpaid rent.

A hypothetical example: the Souza family's defaulting tenant

Imagine the Souza family renting out an apartment in São Paulo whose rent is important to their household budget. The tenant fails to pay for four months, stops responding and remains in the property. This is a hypothetical example illustrating the available steps.

With advice, the family can collect tenancy evidence and an itemized debt calculation and seek eviction together with recovery of arrears. If there is no valid lease security, they can assess an interim application and judicial security of three months’ rent. Whether relief is granted, the default is cured and possession is recovered depends on the proceedings. Arrears may still be pursued, but full recovery or repossession within a few weeks is not guaranteed, and delay cannot simply be assumed to double the loss.

The most common (and costly) mistakes

• Waiting too long to assess the options. Arrears and maintenance expenses may accumulate; evidence and available measures should be reviewed early.

• Calculating the debt wrong. An inaccurate calculation delays the action and any curing of the default.

• Not assessing interim relief when appropriate. The specific requirements of art. 59 must be examined; not every unpaid rent claim allows a 15-day eviction order.

• Trying to "take the law into your own hands". Changing the lock or cutting off water is illegal and creates liability.

• Forgetting to collect the amounts. Taking back the property does not erase the debt — it can be collected as well.

Checklist: before filing the eviction for non-payment

• Gather the agreement and the updated calculation of the debt.

• Check the existence, validity and termination of lease security, which affect the relevant ground for interim relief.

• Consider an amicable demand or settlement before the action.

• Consider requesting a preliminary eviction order, if applicable.

• Monitor the deadline and any curing of the default by the tenant.

• Conduct the action with a real estate lawyer.

Frequently asked questions about eviction for non-payment

How does eviction for non-payment work?

The landlord proves the tenancy and debt and may combine eviction with recovery of arrears under arts. 9, III, and 62 of Law 8.245/1991. The tenant may defend the claim or make the full court deposit if legally eligible. Without valid lease security, the court assesses the conditions for an order allowing 15 days to vacate, with judicial security of three months’ rent. Termination and enforcement require the applicable procedure.

Can the tenant avoid eviction by paying the debt?

Yes, if the conditions of art. 62, II are met: a full court deposit within 15 days of service of the summons, including rent and charges due up to payment, enforceable penalties, interest, court costs and the landlord’s legal fees of 10% of the amount owed unless the agreement provides otherwise. Use of this remedy in the 24 months before filing prevents its repetition. Article 59, §3 also governs the full deposit that can defeat an interim order under item IX.

How long does an eviction for non-payment take?

There is no single timeframe: service, defenses, evidence, the court’s schedule and enforcement all matter. The 15 days under art. 59 are the period to vacate in the statutory circumstances, not a deadline for a decision or the whole case. Proper documentation helps the assessment but does not guarantee repossession within weeks or faster proceedings than other civil actions.

Do I need to notify the tenant before filing for eviction for non-payment?

For rent already due and unpaid, a fresh demand is generally not a prerequisite, but the agreement, due date and grounds must be checked. Other eviction grounds may require notice; a residential lease continuing for an indefinite term does not itself permit no-cause repossession, and arts. 46 and 47 must be considered. Settlement may be an option, without being necessarily the fastest or cheapest route.

How to take back a rented property in São Paulo for non-payment?

Collect evidence of the tenancy, payments and an updated debt calculation and bring the appropriate claims before the competent court. Article 58, II generally points to the property’s location, subject to a valid contractual choice of forum. A lawyer assesses interim relief, judicial security, cure and defenses, handling possession and arrears in light of the circumstances.

Do I need a lawyer for an eviction action?

An eviction action for non-payment in the ordinary courts generally requires a lawyer. The work includes the calculation, grounds, security, interim applications, deadlines, cure, defenses and enforcement. Those who qualify may explore assistance from the Brazilian Public Defender’s Office. Representation does not guarantee speed or full recovery.

In the face of default, acting early protects your assets

Eviction for non-payment allows the landlord to seek termination and recovery of possession through the courts. Accurate evidence and calculations, with interim relief where available, support the assessment. Arrears can be pursued in the same case, but the time to vacate and amounts recovered depend on the circumstances.

On the tenant's side, knowing about curing the default — and its limits — is equally important. In both cases, legal guidance avoids mistakes that cost time and money, such as the illegal "taking the law into your own hands".

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we work in real estate law and leasing — conducting eviction actions, collecting overdue amounts and advising landlords and tenants. If you are facing default in a lease, it is worth acting before the loss grows.

Talk to our team on WhatsApp: +55 11 95901-1854 — to discuss lawful recovery of possession and rent arrears.