Eviction action: when is the right time to file — and when can you get a preliminary injunction to vacate in 15 days?

Every landlord facing unpaid rent runs the same mental math: "do I wait one more month or do I file?". Waiting feels gracious; legally, it tends to be expensive. Every month of informal tolerance is one more month's rent to collect from someone who has already shown they don't pay — and courtroom experience is blunt: accumulated rental debt is rarely recovered in full, even with a judgment. The right moment to evict is, almost always, earlier than the landlord would like to admit.

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:

1. Non-payment of rent and charges — the absolute front-runner;
2. End of term in non-residential leases, or no-cause termination in residential leases running for an indefinite term (with prior notice and a 30-day deadline to vacate — arts. 46 and 57 of Law 8,245/91);
3. Breach of contract (prohibited subletting, improper use, damage);
4. The landlord's own use and the other scenarios of art. 47;
5. Urgent repairs ordered by the public authorities.

Each ground has its own requirements and procedure — choosing the right one (or combining them: eviction together with a rent claim) determines both the timeline and the outcome.

When can you get an injunction to vacate in 15 days?

Art. 59, § 1 of Law 8,245/1991 lists the scenarios for a preliminary injunction to vacate in 15 days, against a security deposit of 3 months' rent. The most common: non-payment under a lease with no guarantee (no guarantor, security deposit or rental insurance — item IX), end of the term of a non-residential lease with the action filed within 30 days (item VIII), and conditional termination in the cases set by law. The strategic translation for landlords: how the lease is designed today determines how fast the eviction moves tomorrow — paradoxically, waiving a guarantee speeds up the injunction-based repossession, while a solid guarantor speeds up debt recovery. It's a risk-profile choice.

Can the tenant "reset the game" by paying? Curing the default

Yes — once every two years. In an eviction for non-payment, the tenant avoids termination by paying everything (rent, charges, interest, penalty, court costs and attorney's fees) within 15 days of being served (art. 62, II). But the benefit isn't unlimited: no new cure is allowed if the tenant has already used it in the previous 24 months (art. 62, sole paragraph). For the landlord, this means a well-built eviction case either recovers the full debt quickly (the cure) or moves the vacating forward — both outcomes beat informal waiting.

How long does an eviction take — and how can you shorten it?

With an injunction granted: vacating within weeks. Without one, under the ordinary procedure at the São Paulo State Court (TJSP), repossession usually takes several months to over a year, depending on the court district and on how hard the tenant resists. Proven accelerators: a well-drafted prior formal out-of-court notice (it builds the evidentiary record and, for several grounds, is a requirement), an injunction request where available with the security deposit ready, combining eviction with the rent claim so you don't run two cases, and provisional enforcement of the eviction judgment — as a rule, an appeal does not stay it (art. 58, V).

A concrete example: the eviction of the Lapa store

Roberto leased out his store in Lapa for R$ 6,500, with no guarantee, offering a discount in exchange. The tenant missed January; in February, he "promised to pay"; in March, Roberto filed an eviction action for non-payment with an injunction request (art. 59, § 1, IX), depositing 3 months' rent as security. Injunction granted: vacating in 15 days. The tenant, once served, did not cure the default — he left on time, and the claim went forward for the 3 months owed. The whole cycle: 70 days. Roberto's neighbor, in the same situation, "waited for the guy to sort himself out" for 8 months: he piled up R$ 52,000 in debt he never recovered. The right timing was worth R$ 30,000.

The most common (and costly) mistakes

1. Changing the locks, cutting off power or removing belongings on your own. It is the crime of taking the law into your own hands (art. 345 of the Brazilian Criminal Code) and entitles the tenant to damages. Risk: the creditor becoming the defendant.
2. Tolerating informally for months. Risk: turning 1 lost month's rent into 8 — uncollectable.
3. Accepting verbal installment deals. Risk: restarting the default from zero, with nothing enforceable in hand.
4. Filing on the wrong grounds or without the right notice. Risk: the case being dismissed and months lost.
5. Forgetting to combine eviction with the rent claim. Risk: getting the property back and abandoning the debt.

The landlord's actionable checklist

• Default detected: give written notice within 15 days (short deadline, firm tone);
• Check the lease's guarantee — it determines whether the 15-day injunction is available;
• No payment within 30 days: file an eviction action for non-payment combined with a rent claim;
• 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;
• Never take matters into your own hands — every repossession goes through the judge.

Frequently asked questions

Can I evict a tenant without going to court?

No. Taking the property back by force — changing locks, cutting off utilities, removing belongings — is the crime of taking the law into your own hands (art. 345 of the Brazilian Criminal Code) and creates a duty to compensate the tenant. Unless the keys are handed back voluntarily, the only path is the eviction action under Law 8,245/1991, with a court order to vacate.

How many months of unpaid rent before I can file for eviction?

From the very first missed payment — the law does not require months of arrears to pile up. Waiting "a little longer" only grows the debt of someone who already isn't paying. An eviction for non-payment can (and should) be combined with a claim for the rent and charges already due and falling due.

What is the 15-day eviction preliminary injunction?

It is an order to vacate granted at the start of the case, against a security deposit of 3 months' rent, in the scenarios of art. 59, § 1 of Law 8,245/1991 — most notably non-payment under a lease with no guarantee (no guarantor, security deposit or rental insurance) and the end of the term of a non-residential lease with the action filed within 30 days. Once granted, the tenant has 15 days to leave.

Can the tenant avoid eviction by paying the debt?

Yes, by curing the default: paying rent, charges, interest, penalty, court costs and attorney's fees in full within 15 days of being served (art. 62, II of Law 8,245/1991). The benefit, however, cannot be repeated by a tenant who has already used it in the previous 24 months — a habitual defaulter doesn't get to cure again.

When should I hire a lawyer for an eviction action in São Paulo?

In the first month of non-payment, or as soon as you decide to take the property back at the end of the term. The right strategy — legal grounds, notice, preliminary injunction, combining eviction with a rent claim — set early on cuts months off the case at the São Paulo State Court (TJSP) and protects your credit. Statistically, every month of informal waiting is a month's rent given away.

The right timing for an eviction is a management decision, not a patience test

The law gives landlords fast tools — a 15-day injunction, a cure that recovers the debt in full, a judgment enforceable right away. 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 lease agreements that speed up both 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.