Eviction action: when is the right time to file — and when can you get a preliminary injunction to vacate in 15 days?
Eviction action: when to file, the scenarios for a 15-day preliminary injunction to vacate (art. 59 of Law 8,245/91), curing the default and factors affecting duration at the TJSP.
The eviction action (the Brazilian ação de despejo — removal of a tenant; not to be confused with loss of title, “evicção”, in purchase transactions) is the only lawful way to take back a leased property when it isn't handed back voluntarily (Law 8,245/1991). The right timing depends on the legal grounds: for non-payment, it can be filed as soon as the rent is missed — and, if the lease has no guarantee, a preliminary injunction to vacate in 15 days is available against a security deposit (art. 59, § 1, IX of Law 8,245/91); for end of term, notice requirements and deadlines depend on the contractual regime. Forcing a tenant out personally may create civil and criminal liability.
Tenant not paying? See how we run eviction proceedings in São Paulo — and when an injunction to vacate applies.
When rent is unpaid, a landlord must decide whether to negotiate or file. Waiting can increase the debt, but a documented settlement may also help. The review should consider the lease, security, evidence and ability to pay. The law does not require several months of arrears: timing is case-specific, and the debt should not be presumed uncollectable.
The eviction action is the procedural route under Law 8,245/1991 to terminate the lease and take the property back. Here we cover the possible legal grounds, when the 15-day injunction is available, how the tenant's right to cure the default works, the real timelines, and the mistakes that turn simple repossessions into long-running sagas.
What are the legal grounds for seeking eviction?
The main ones, in São Paulo practice:
- Non-payment of rent and enforceable charges;
- End of term in non-residential leases (art. 56), or no-cause termination where permitted. Residential art. 46 applies to written leases of at least 30 months; oral or shorter leases follow art. 47. Indefinite non-residential leases require 30 days’ written notice (art. 57);
- Breach of contract (prohibited subletting, improper use, damage);
- The landlord's own use and the other scenarios of art. 47;
- Urgent repairs ordered by the public authorities, where incompatible with the tenant remaining or obstructed by the tenant’s refusal (art. 9, IV).
Each ground has its own requirements and procedure — choosing the right one (or combining them: eviction together with a rent claim) guides strategy without guaranteeing timing or outcome.
When can you get an injunction to vacate in 15 days?
Art. 59, §1 of Law 8,245/1991 provides for a 15-day preliminary order to vacate against court security of three months’ rent. Item IX requires non-payment without any art. 37 lease security: a deposit, personal guarantee, rent-guarantee insurance or fiduciary assignment of investment-fund units, including the statutory cases of extinguished security. Item VIII concerns a non-residential lease ending, with filing within 30 days of expiry or completion of the repossession notice. Other grounds, including urgent repairs and failure to replace security, have their own requirements. The 15 days follow proper communication of the order, not filing. The landlord’s court security differs from lease security; waiving the latter does not guarantee speed and increases credit risk.
Can the tenant "reset the game" by paying? Curing the default
In a non-payment eviction, the tenant or guarantor may avoid termination through a full court deposit within 15 days of service (art. 62, II): rent and accessories due up to payment, enforceable penalties, interest, costs and legal fees. This option is barred if the tenant used it in the 24 months immediately before filing; earlier late payment alone does not trigger the bar. An insufficient deposit follows art. 62, III. For the item IX injunction, art. 59, §3 also allows full deposit within the period to vacate. Procedural dates and any independent termination grounds must be checked; immediate recovery or inevitable eviction cannot be promised.
How long does an eviction take — and how can you shorten it?
The 15 days are not the total period from filing to recovering the keys. Judicial review, service, defence, evidence and enforcement can take months or longer, with no verified uniform TJSP timeline. A lease, updated debt account, required notice and prepared security help avoid procedural difficulties. A combined rent claim may be useful but does not guarantee solvency. Appeals generally do not stay the judgment (art. 58, V); provisional enforcement must comply with arts. 63 and 64, any required security and any stay ordered in the case.
Hypothetical example: the eviction of the Lapa store
In this hypothetical example, Roberto rents out a Lapa shop for R$ 6,500 monthly without lease security. January, February and March unpaid would total R$ 19,500 before additional charges. Three months’ court security would also be R$ 19,500, but it is a separate obligation. After checking the conditions, he could seek an art. 59, §1, IX injunction and consider a combined rent claim. The court decides, and the tenant retains the defence and statutory right to cure. Eight unpaid months would total R$ 52,000; that does not establish that recovery is impossible or that filing saves R$ 30,000. This is not a verified firm case or a promise to finish within 70 days.
The most common (and costly) mistakes
- Changing the locks, cutting off power or removing belongings on your own. It may constitute unlawful self-help under art. 345 of the Criminal Code and create civil liability, depending on the facts. Risk: the creditor becoming the defendant.
- Tolerating informally for months. Risk: increasing the debt and weakening evidence, without presuming it is uncollectable.
- Accepting verbal installment deals. Risk: disputes over sums, due dates and concessions; an oral agreement does not automatically restart default.
- Filing on the wrong grounds or without the right notice. Risk: the case being dismissed and months lost.
- Forgetting to combine eviction with the rent claim. Risk: failing to plan collection, which may also be pursued separately and is not automatically lost.
The landlord's actionable checklist
- Document default and communicate in writing; there is no general statutory 15-day deadline for the first demand;
- Check the lease's guarantee — it determines whether the 15-day injunction is available;
- Assess eviction and a combined or separate rent claim, without assuming a mandatory 30-day wait;
- Have the 3 months' rent security deposit set aside for the injunction request, where available;
- For no-cause termination: prior formal notice with the statutory deadline before filing;
- Document voluntary handover; forced eviction requires judicial procedure.
Frequently asked questions
Can I evict a tenant without going to court?
Voluntary handover can be documented, but a landlord must not force the tenant out personally. For leases governed by Law 8,245/1991, forcible recovery requires the legal procedure. Changing locks, cutting services or removing belongings may create civil and criminal liability, including under art. 345 of the Criminal Code, depending on the facts.
How many months of unpaid rent before I can file for eviction?
An enforceable missed payment may support filing from the first default; several unpaid months are not required. The lease, debt and security must be checked. A rent claim may be combined with eviction under art. 62, I, but this is optional and does not guarantee recovery.
What is the 15-day eviction preliminary injunction?
It is initial relief in the situations under art. 59, §1, against security of three months’ rent. These include non-payment without any art. 37 security and the end of a non-residential lease under item VIII’s conditions. The fifteen days are for vacating after proper communication of the order, not a promise of total case duration.
Can the tenant avoid eviction by paying the debt?
A full court deposit may prevent termination under art. 62, II, within fifteen days of service, including the legally required amounts. This option is barred if used in the twenty-four months before filing. For an unsecured non-payment injunction, art. 59, §3 also allows deposit within the period to vacate. The procedural steps and conditions must be checked.
When should I hire a lawyer for an eviction action in São Paulo?
Seek advice when default is identified or before giving a termination notice. The review checks grounds, notices, security, interim relief and possible debt recovery; it cannot guarantee handover within a fixed period or full collection.
The right timing for an eviction is a management decision, not a patience test
The law provides tools subject to conditions: an interim order to vacate, full cure and enforcement under the procedural rules. What it doesn't give back is the time lost to informal tolerance. Treat the first missed payment as data, not drama: give notice, document everything and decide on a calendar.
At Falchet e Marques Sociedade de Advogados, a law firm in São Paulo (Av. Paulista), we run evictions strategically — the right grounds, injunctions, combined rent claims and enforcement — and we draft leases with attention to the conditions for repossession and debt recovery.
Talk to our team on WhatsApp: +55 11 95901-1854 — describe the situation of your leased property (unpaid rent or end of term) and receive the repossession roadmap for your case.