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

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 relatively fast 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 brings the action supported by the agreement and the calculation of the debt (overdue rent and charges, with penalty, interest and indexation).

• 2. Summons: the tenant is summoned to, within the deadline, pay (curing the default) or contest.

• 3. Preliminary order (if applicable): with no guarantee in the agreement, the landlord can obtain a preliminary eviction order within 15 days, upon posting a security deposit.

• 4. Outcome: by paying, the tenant stays; if they neither pay nor vacate, an eviction warrant is issued.

It is a more straightforward action than ordinary proceedings, because default itself authorizes repossession — there is no need to "prove" much beyond the debt and the agreement.

Can the tenant avoid eviction by paying? Curing the default

Yes — and this is a point that every landlord and tenant should know. Curing the default is the tenant's option to pay the updated debt (rent, charges, penalty, interest and court costs) within the time allowed for the defense and, with that, avoid termination and stay in the property (art. 62, II, of Law 8.245/1991).

There is, however, an important limit: the law does not allow curing the default if the tenant has already used it in the previous 24 months. In other words, the tenant can "redeem themselves" by paying — but not indefinitely. For the landlord, this means that a tenant who is repeatedly late may, eventually, no longer have the right to cure the default — clearing the way for definitive repossession. Understanding this mechanism is essential for both sides.

When does a preliminary eviction order apply?

The preliminary eviction order allows the landlord to take back the property before the end of the proceedings. In eviction for non-payment, it is especially relevant when the agreement has no guarantee (no guarantor, security deposit or rent guarantee insurance): in that case, the landlord can obtain vacating within 15 days, upon posting a security deposit of three months' rent (art. 59 of Law 8.245/1991).

This mechanism reverses a logic that used to harm landlords: instead of waiting for the entire process, it is possible to recover the property quickly and stop the loss. So, paradoxically, agreements without a guarantee may allow a faster repossession through a preliminary order — although a guarantee, in general, brings more security regarding receipt of the amounts. Balancing these options is part of lease planning.

A practical example: the Souza family's defaulting tenant

The Souza family rented out an apartment in São Paulo, which represented an important part of their income. The tenant stopped paying for four months and stopped responding, but kept living in the property. The family did not know what to do — and each month without rent weighed on their budget.

With guidance, the family filed the eviction action for non-payment, supported by the agreement and the calculation of the debt. Because the agreement had no guarantee, they requested the preliminary eviction order, granted upon posting a security deposit — and the property was recovered within a few weeks, stopping the loss. In parallel, the action sought the collection of the overdue rent. The tenant, once summoned, did not cure the default. The result: the family recovered the property quickly and continued pursuing the debt. Had they waited longer, the loss would have doubled. Acting early, with the right strategy, made the difference.

The most common (and costly) mistakes

• Waiting too long to act. Each month of default is a loss that is hard to recover in full.

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

• Not requesting the preliminary order when applicable. Without a guarantee, vacating within 15 days speeds up repossession.

• 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 whether the agreement has a guarantee (this determines whether the preliminary order applies).

• 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 files the eviction action supported by the calculation of the debt (overdue rent and charges), based on Law 8.245/1991 (art. 9, III, and art. 62). The tenant is summoned and may pay the updated debt to avoid leaving (curing the default) or contest. If the agreement has no guarantee, the landlord may request a preliminary eviction order within 15 days, upon posting a security deposit. It is the route to take back the property in the face of default.

Can the tenant avoid eviction by paying the debt?

Yes, by curing the default: the tenant pays the updated debt (rent, charges, penalty, interest and court costs) within the time allowed for the defense and, with that, avoids termination and stays in the property (art. 62, II, of Law 8.245/1991). There is, however, a limit: the law does not allow curing the default if the tenant has already used it in the previous 24 months. So the benefit exists, but it is not unlimited.

How long does an eviction for non-payment take?

It varies depending on the tenant's defense and the court, but the procedure is relatively quick. If the agreement has no guarantee, the landlord can obtain a preliminary eviction order within 15 days, upon posting a security deposit of three months' rent (art. 59 of Law 8.245/1991). Even without a preliminary order, the action tends to be faster than ordinary proceedings. Correct supporting documents (debt calculation and agreement) are what speed up repossession the most.

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

For eviction for non-payment, prior notice is not required: the default itself authorizes the action, supported by the calculation of the debt (art. 62 of Law 8.245/1991). Prior notice is required in other situations, such as repossession in a lease extended for an indefinite term. Even so, an amicable demand or a settlement before the action is usually the fastest and cheapest path.

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

By gathering the agreement and the updated calculation of the debt and filing the eviction action in the competent court in São Paulo. Depending on the case (absence of a guarantee), a preliminary eviction order is requested. A real estate lawyer in São Paulo conducts the action, correctly calculates the debt, requests the preliminary order when applicable and monitors any curing of the default — seeking to take back the property in the shortest possible time.

Do I need a lawyer for an eviction action?

Yes, eviction is a court action and requires a lawyer. And technical work matters: the correct calculation of the debt, the request for a preliminary order when applicable and the handling of curing the default or of the defense directly affect how quickly repossession happens. A real estate lawyer in São Paulo conducts the eviction with the right strategy and also handles the collection of the overdue amounts.

In the face of default, acting early protects your assets

Eviction for non-payment is the route the law offers the landlord to stop the loss and take back the property. With correct supporting documents — agreement and calculation of the debt — and the use of the preliminary order when applicable, repossession can be relatively fast, and the overdue amounts can be collected in parallel.

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 — and take back your property with legal security.