6 jurisdictions

The tenant has stopped paying and will not leave: what the law says in six jurisdictions

Italy, Germany, Spain, England, California and New York all send a landlord to court to recover a home. They divide sharply on whether the grounds are a closed statutory list, how much arrears it takes, and who pays for the months the tenant stays on.

Who answers this problem

Italia Art. 1591 France Loi n° 89-462 du 6 juillet 1989 In law we don't carry Deutschland § 543 +1 España Art. 1569 United Kingdom HA 1988 s. 7 +1 California CIV § 1946.2 New York N.Y. Real Property Law § 216

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The problem

The rent has not arrived for five months. The fixed term has run out. The tenant is still in the flat, is not answering, and shows no sign of moving. The landlord wants the property back and the arrears, and wants to know how long that takes and what they are allowed to do in the meantime.

What they agree on

The first rule is the same in all six, and it is the one landlords most often break: you cannot take the property back yourself. Spain's art. 1569 says the landlord may "desahuciar judicialmente" — the word is in the text, and self-help is met by the possessory remedy of art. 446. The Italian page for art. 1591 points to art. 1168 for the tenant thrown out by a changed lock. The German page for § 546 calls self-eviction verbotene Eigenmacht under § 858, even after a valid termination. England's Housing Act 1988 s. 7 opens "The court shall not make an order for possession... except", and New York's RPL § 216 says a tenant may not be removed "except upon order of a court of competent jurisdiction". California routes recovery through unlawful detainer under the Code of Civil Procedure. Changing the locks or cutting the utilities is a wrong in every one of these systems, and in several of them a more expensive one than the arrears.

The second point of agreement is that non-payment is a named ground everywhere. No system in this group lets a landlord recover a home simply because they would like it back; every one of them requires the landlord to say what the reason is and to bring it within a category the law recognises. And in all six, the end of the tenancy and the recovery of the premises are two separate events: the tenancy ending does not put the landlord back in possession.

What none of these provisions decides is how long any of it takes. Timetables, service, enforcement and the bailiff are procedural law in every one of the six, and they sit outside the articles compared here. Two of the six also carry an expiry date in their own text — a detail worth checking before relying on them.

Where they part company

Jurisdiction What its law does Why it matters
Italia Italy is the only member that answers the second half of the question: what the landlord is owed for the months the tenant stays on. Art. 1591 makes the tenant in default on returning the property pay the agreed contractual figure until actual handover, "salvo l'obbligo di risarcire il maggior danno". Not a market rate and not a judicially set sum: the figure from the contract that has already ended, treated as a floor rather than a ceiling, with any further loss to be proved concretely. Germany has the same idea but not in the members here — § 546 states the duty to return and the Nutzungsentschädigung sits in § 546a. The English, Californian and New York members are silent on it. And the Italian article makes handover the trigger, so a flat left full of furniture, or keys not actually returned, may not count as handed back.
Deutschland Germany writes the arrears arithmetic into the code. § 543(2) no. 3 gives a wichtiger Grund where the tenant is in default for two consecutive payment dates with the rent or a not insignificant part of it, or over a period spanning more than two dates with an amount reaching two months' rent. Spain's art. 1569 names "Falta de pago en el precio convenido" with no figure; Italy states the general ground without one; England keeps its figures in Schedule 2 rather than in s. 7. A German landlord can read the threshold off the statute before doing anything. An Italian or Spanish landlord cannot, because the question is whether the breach is serious enough, which is decided case by case.
Paying up cuts differently in each. § 543(2) says the termination for arrears is excluded if the landlord is satisfied beforehand, and becomes ineffective if the tenant could have discharged the debt by set-off and declares the set-off immediately after the termination. New York's § 216(3) preserves the tenant's right under RPAPL § 751 to stay the warrant. England's s. 8(5) goes the other way for the strongest grounds: the court may not dispense with the notice requirement at all where the landlord relies on Ground 7A, 7B or 8. Whether late payment rescues the tenancy is one of the few questions on which a tenant can act, and the six answers are not aligned. In Germany it is written into the same paragraph as the ground; in England the grounds it applies to are precisely the ones the statute hardens.
Germany also demands a preliminary step that the others do not put in the same provision. Under § 543(3), where the important reason is a breach of a contractual duty, termination is permissible only after a reasonable remedial deadline has passed without success or a warning has gone unheeded — with three exceptions, one of which is rent arrears under (2) no. 3, for which no warning is needed. It is a genuine trap in both directions: a landlord terminating for anything other than arrears without first warning has terminated too early, while a landlord who thinks arrears need a warning has waited unnecessarily.
§ 546(2) is unusually explicit about who has to give the property back: where the tenant has let a third party use it, the landlord may demand it back from that third party too after the tenancy ends. A sub-tenancy gives the sub-tenant nothing against the owner once the head tenancy ends, and a landlord who wants an eviction carried out needs a title against everyone actually in occupation — the sub-tenant, the partner, the adult flatmate — not only against the person who signed the lease.
United Kingdom England, California and New York have moved to an exhaustive statutory list of grounds outside which possession simply cannot be ordered: HA 1988 s. 7 ("except on one or more of the grounds set out in Schedule 2"), Civ. Code § 1946.2 (no termination "without just cause, which shall be stated in the written notice"), RPL § 216 (removal only where the landlord "has established one of the following grounds"). Italy, Germany and Spain instead state the substantive ground — the breach that dissolves or ends the lease — and leave the rest to the codes of civil procedure. It changes what the argument is about. In the list systems the first question is which numbered ground applies and whether its own conditions are met. In the code systems the first question is whether the tenant is in breach at all, with the route to possession handled elsewhere.
England is the only one of the six that splits the grounds into mandatory and discretionary. Under s. 7(3), if a Part I ground is established the court "shall make an order for possession"; under s. 7(4), if a Part II ground is established the court "may make an order for possession if it considers it reasonable to do so". That reasonableness inquiry — the tenant's circumstances, the history of the tenancy, the effect of an order — exists on one side of Schedule 2 and nowhere else in this comparison. On the mandatory side there is no such discretion at all, subject only to the exceptions stated in the section and to a Convention rights defence.
California California and England are the only members that prescribe the notice itself. Section 8 requires a notice in the prescribed form, specifying the ground and particulars of it, telling the tenant proceedings will not begin before a date set by a statutory table (four months, two months, four weeks or two weeks depending on the ground) and not later than twelve months from service. Civil Code § 1946.2 requires just cause stated in the written notice, a chance to cure a curable breach first, and — for no-fault grounds only — relocation assistance of one month's rent or a written waiver of the final month, with failure to comply strictly rendering the notice void. In both, a defective notice ends the claim rather than delaying it. The Italian, German and Spanish articles say nothing about the form of a notice, because that is procedural law sitting outside the code.
Coverage is not universal in the two American members and is time-limited in both. § 1946.2 protects only after 12 continuous lawful months of occupation (up to 24 where adults were added to the lease), and exempts transient occupancy, dormitories, owner-occupied duplexes, single-family homes and condominiums carrying the printed exemption notice, and housing with a certificate of occupancy issued in the previous 15 years. The section states that it became operative on 1 April 2024 and remains in effect only until 1 January 2030. New York's § 216 depends on coverage under § 214 and carries a published note that the article is repealed on 15 June 2034. These are the only two members with an expiry date printed in their own text. Spain's art. 1569 has the opposite problem: it is permanent but partly displaced, since the Ley de Arrendamientos Urbanos governs duration, mandatory extension and the enervación of a possession claim for dwellings, and sits on top of the code's four causes.
New York New York alone makes the arrears themselves conditional. Under § 216(1)(a), non-payment is good cause only to the extent the rent due did not result from an unreasonable increase, and for an unregulated dwelling there is a rebuttable presumption that a rise in a calendar year above the local rent standard is unreasonable. The court must consider the landlord's property tax expenses, may consider fuel, utilities, insurance and maintenance, and may credit a good faith increase reflecting completed significant repairs — defined to require a permit or hazardous-materials abatement, with cosmetic work expressly excluded. A non-payment case in New York can turn into an argument about whether the rent was ever properly due. No other member here lets the reasonableness of the rent be litigated inside the possession claim.
California and New York both allow recovery where nobody is at fault — owner or relative moving in, demolition, withdrawal from the market — and police it in opposite ways. New York requires each of those three grounds to be established by clear and convincing evidence, bars the owner-use ground entirely against a tenant aged 65 or over or a disabled tenant, requires that no other suitable unit in the building be available, and gives a tenant who left on a fraudulent statement of intended use a claim for damages and attorneys' fees. California instead pays: relocation assistance or a waived last month's rent, regardless of the tenant's income, plus a re-offer obligation if the intended occupant does not move in within 90 days or does not stay 12 months. The same commercial reality — a landlord who wants the flat for themselves — is handled in one place by an evidential standard and a protected class, and in the other by a price.

The provision in each country

Each card links to the page that reproduces the official text and explains it in that country's own language.

Italia Codice Civile

Deutschland BGB

España Código Civil

United Kingdom Housing Act 1988

California California Civil Code

New York Real Property Law

Where there is no answer in the code

A jurisdiction listed here is a finding, not a gap. Either its answer lives outside the corpus — special legislation, case law, municipal rules — or its law simply has no such rule.

  • France In law we don't carry

    Loi n° 89-462 du 6 juillet 1989

    Recovering possession of a French dwelling is not Code civil business. It is loi n° 89-462 of 6 July 1989 and the code des procédures civiles d'exécution, neither of which is in the corpus behind these pages. The Code civil lease articles that survive — art. 1728 among them, which does have a page — state the tenant's duty to pay and to use the premises as agreed, but they no longer govern how a landlord gets a home back. This is the same shape of absence as French co-ownership, where the answer sits in the loi du 10 juillet 1965.

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This page compares provisions of several legal systems in general terms and links to the official text of each. It is not legal advice, it does not tell you which country's law governs your situation, and it takes no account of the circumstances of your case. For a live dispute, consult a qualified lawyer in the jurisdiction concerned.

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