Eviction in Brazil: the ação de despejo step by step

Where and how the case runs

Article 58 sets the common rules for these cases: they continue during court holidays, are heard in the court of the place of the property unless the contract chooses another forum, the value of the claim is twelve months of rent, and an appeal against the judgment has no suspensive effect (it does not stop the order from being carried out). Service by registered mail is allowed when the contract authorises it. The case follows the ordinary procedure with the changes in articles 59 to 66.

Grounds that allow an urgent order to leave in 15 days

Article 59, paragraph 1, lets the judge order a vacating within 15 days without hearing the tenant first, provided the landlord posts a security equal to three months’ rent, in these cases only:

1. breach of a written mutual-termination agreement signed by the parties and two witnesses that gave a minimum of six months to leave;
2. end of an employment-linked occupancy, with written proof of the dismissal;
3. the end of a short-term (temporada) lease, if the action is filed within 30 days of its end date; see short-term rentals;
4. the tenant’s death with no lawful successor and unauthorised people staying on;
5. a sub-tenant staying after the main lease ended;
6. urgent repairs ordered by the authorities that the tenant refuses to allow;
7. the end of the 30-day period given to supply a new guarantee, without one being supplied;
8. the end of a non-residential lease, if filed within 30 days of the term;
9. non-payment of rent and charges when the lease has no guarantee (never agreed, or ended or withdrawn).

In case 9 the tenant can still avoid the order and the termination by depositing in court, within the 15 days, the whole amount owed as set in article 62, II (paragraph 3).

Eviction for non-payment of rent

In an ordinary rent-arrears case (article 62) the landlord can combine the request to end the lease with a claim for the unpaid sums, and must attach an itemised calculation of the debt. The tenant, and the guarantors, can avoid the termination by paying within 15 days of service, by court deposit, the updated debt, including:

• rent and charges falling due up to the payment date;
• contractual penalties, where due;
• default interest;
• court costs and the landlord’s lawyer’s fees, set at 10 percent of the amount due unless the contract says otherwise.

If the landlord says the deposit is incomplete, the tenant may complete it within 10 days of being notified. The same right to “cure” is not available again if the tenant used it in the previous 24 months (article 62, single paragraph). A tenant who is served should therefore treat the 15 days as a hard limit and speak to a lawyer immediately.

After the judgment: time to leave

When the action succeeds, the order carries 30 days for voluntary vacating (article 63). The time is 15 days if more than four months passed between service and the first-instance judgment, or if the eviction was ordered on a ground in article 9 or under article 46, paragraph 2 (an extended lease ended by the landlord). Special periods apply to schools (aligned with school holidays), and to hospitals, public offices and religious bodies, among others (article 63, paragraphs 2 and 3).

In actions based on the landlord’s own use, a relative’s use, or works (article 46, paragraph 2 and article 47, III and IV), if the tenant agrees to leave in the time to respond, the judge grants six months to vacate and the losing side bears costs and a 20 percent lawyer’s fee; the tenant is exempt from those if they leave on time (article 61).

If the landlord enforces the order before the final judgment (provisional execution), the judge will require a security of between six and twelve months’ rent, except for actions based on article 9 (article 64). If the order is later overturned, that security goes to the tenant as the minimum compensation.

Limits on the enforcement

Enforcement takes place after the deadline and may use force, including breaking in (article 65); movables go to a depositary if the tenant does not collect them. The eviction may not be carried out until the 30th day after the death of a spouse, ascendant, descendant or sibling of anyone living in the home (article 65, paragraph 2); breaching this is a crime of public action (article 44, IV). A tenant who abandons the property after the action is filed lets the landlord take possession (article 66). The Act does not describe any right for the landlord to change the locks or cut the utilities to force a tenant out.

Which professional to consult

Both sides should consult a lawyer registered with the OAB before any step: for a landlord, to choose the correct ground and prepare the debt calculation; for a tenant, to meet the 15-day deadline. See the property lawyer page. The state court’s public defender service may help those who cannot afford a lawyer; Payotte did not read the eligibility rules.