aca debt collection

Collection of debts to tenants



In an article for Vida Económica, Rita Rodrigues answers the question: Can I execute the lessee on account of all the rent that he has not paid?

There have been references and articles on the BNA and collection of debts to the tenants. That said, the truth is that it has been with some astonishment that we have been confronted with court decisions, which take the view that there is no enforceable title as to the request for payment of the amounts relating to "rent" and / or "value proportional to the days of occupancy of the property, calculated with reference to the value of the rent "due between the sending of the communication for the resolution of the contract, resolution and the effective return of the leased.

In view of the resolution of the lease operated either by means of a separate judicial notification or by another legal means, the landlord (after the legal deadline has expired without the tenant having paid the amounts in addition to their respective compensation), the right to proceed judicially with the eviction process in the BNA. However, it is often opted for, in parallel, autonomously and at a time prior to the PED, to proceed judicially with the competent execution for payment of the amounts in debt, thus presenting as executive title the lease accompanied by proof of communication to the lessee of the amount in debt and certificate of notification thereof (Article 14 A of Law no. 6/2006, of 27/02 and letter c) of no. 1 of article 703 of the CPC).

However, there is an unavoidable reality, and it is necessary to debate ... Now, between the communication of the claim of the resolution which results in the indication and communication of the amounts due and divided by the lessee, their effective communication and consolidation of the effects of the resolution 30 days), which will allow us to have a title for the eviction and collection of amounts owed, amounts that our courts have come to understand are being won in another totally different and autonomous process! Will that make sense?

Some courts, it is the understanding that only the rents evidently communicated on the date to the lessee as due, are covered by the title deed, arguing that there is no enforcement order regarding the remainder of the securities. Such understanding culminates, with the partial rejection of the execution regarding the request in the surplus value. For such an understanding does not merit our agreement, inasmuch as the existence of amounts which have expired after the date of the formation of the enforcement order can not constitute a ground for rejection, even if it is partial in part. The communication that intends to operate the termination of the contract based on the delay in the payment of income equal to or greater than two months, should be articulated with what the NRAU and CPC have on purpose (art.14ºA of the NRAU and 10º n.º 5 e 716th CPC). In practice, there is a possibility that the obligation may be partly illiquid, in which case settlement can be made in the actual execution, which in this particular case is expedited since such settlement depends only on arithmetical calculation.

For the most distracted, we suggest reading the Ac. RP of 10/18/2011 and Ac. RP, dated 03/22/2012, both available at www.dgsi.pt, where it is understood that it is possible to execute the rents due, to be settled through the liquidation mechanism set forth in art. 716th of the CPC, although the 1st admits only the arrears, but not the indemnity referred to in article 1045 of the C.C. and the second understands also to cover the compensation.

For us, to admit a decision in which there is only an executive title to claim the arrearages due and due to the date of the communication of the claim for the resolution of the lease, is to burden the judicial system with more useless and totally negligent legal proceedings, without any basis whatsoever, other than to monetarily burden the parties and postpone the possibility and feasibility of a coercive, immediate and more effective recovery!