MASC and possession claims: case-law criteria on content, form and time limits
Since 3 April 2025, the “Ley Orgánica 1/2025” —LO 1/2025— has introduced, as a general rule, a pre-action requirement consisting of a prior attempt at negotiation or of recourse to an appropriate means of dispute resolution —a “medio adecuado de solución de controversias” or MASC— in civil proceedings on the merits. In the field of residential and commercial tenancies, this requirement has given rise to significant practical problems: the identity between the out-of-court demand and the claim, evidence of the attempt at negotiation, its relationship with the demand that bars reinstatement of the tenancy, and the way it operates in rent claims and in possession claims based on expiry of the contractual term. In Catalonia, some courts, such as the Civil Division of the “Audiencia Provincial” of Girona, the provincial appellate court, have begun to define criteria on the content, the form and the timing of the MASC required in possession claims, thereby shaping a new map of procedural prerequisites for tenancy claims.
1.The new pre-action requirement under LO 1/2025 and its general scope
LO 1/2025 amends the “Ley de Enjuiciamiento Civil” —the LEC, the Spanish civil procedure statute— so as to make a prior attempt at negotiation or recourse to an appropriate means of dispute resolution a condition of admissibility of civil proceedings on the merits, save in the cases expressly excluded by the statute itself. Its stated purpose is to foster a culture of negotiation and of MASC, to reduce recourse to litigation and to encourage agreed solutions, in line with European trends. The requirement operates as a procedural burden on the claimant: before filing the claim, the claimant must have attempted a negotiation in good faith or have resorted to a suitable MASC, and must evidence this in documentary form when filing the claim. A failure to provide that evidence may lead, depending on the case, to the claim not being admitted or to an order to remedy the defect.
In the tenancy field, LO 1/2025 lays down no general exception, so that, in principle, possession claims and rent claims are subject to the requirement, unless specific grounds of exclusion apply, such as a risk to physical integrity or situations of gender-based violence. This makes it necessary to integrate the new requirement with the particular features of possession proceedings, which already had rules of their own on prior demands, reinstatement of the tenancy and joinder of claims.
2.MASC, prior demand and reinstatement of the tenancy in possession claims for non-payment
In possession claims for non-payment of rent or of other sums due, the “Ley de Arrendamientos Urbanos” —the LAU, the Spanish urban tenancies statute— and the LEC provide for reinstatement of the tenancy if the tenant pays what is owed before the hearing, unless the tenant has already obtained reinstatement in earlier proceedings or the landlord has demanded payment by verifiable means at least thirty days before the claim. This prior demand, which bars reinstatement, has become a key element of the landlord's procedural strategy. The introduction of the MASC requirement raises the question whether the prior demand may at the same time serve as the attempt at negotiation or whether a further step is needed.
From a systematic standpoint, the demand for payment that bars reinstatement is essentially unilateral and admonitory in purpose: it calls on the tenant to pay, warning that, failing payment, a claim will be filed with no possibility of reinstatement. The MASC, by contrast, calls for a negotiating effort in good faith, directed at exploring solutions, which may include proposals for payment by instalments, write-downs, novations or agreements for the agreed vacation of the property. Some Catalan courts have begun to require the attempt at negotiation to have a minimum content distinguishing it from a mere demand for payment, so that a letter claiming the rent is not enough to satisfy the requirement under LO 1/2025.
The Civil Division of the “Audiencia Provincial” of Girona has insisted on scrutinising the content, the form and the timing of the MASC in possession claims. The attempt at negotiation must be made a reasonable time before the claim, must be addressed to the tenant with clarity as to the subject matter of the dispute and the possible ways of resolving it, and must be documented by verifiable means, whether by “burofax” (a registered communication with certified content), by e-mail with acknowledgement of receipt, by notarial record (“acta notarial”) or by a record of a mediation session. The identity between the out-of-court demand and the claim becomes a material factor: the subject matter of the MASC must substantially coincide with that of the claim, so that the requirement will not be regarded as satisfied if the claim introduces new or different heads of claim that were not the subject of prior negotiation.
3.Rent claims and possession claims based on expiry of the contractual term
In rent claims that do not seek possession, the MASC requirement applies more directly. LO 1/2025 seeks to ensure that, before resorting to proceedings on the merits, the creditor attempts a negotiated solution, which in the tenancy field may take the form of proposals for a payment schedule, partial write-offs or restructuring of the debt. Evidence of the attempt at negotiation becomes a condition of admissibility of the claim for payment. Litigation practice will have to adapt, systematically incorporating into the pre-action strategy a documented MASC capable of passing the admission filter.
In possession claims based on expiry of the contractual term, the position is different. Judgment 1086/2025 of the “Tribunal Supremo” —the Spanish Supreme Court, STS 1086/2025— has held that the Catalan mandatory social rent regime does not apply to such cases, which reinforces the view that the loss of the dwelling on expiry of the term follows the logic of freedom of contract and of legal certainty as to the duration of contracts. LO 1/2025, however, does not expressly exclude possession claims based on expiry of the term from the scope of the MASC requirement. Accordingly, in these cases too the landlord should evidence a prior attempt at negotiation, which might consist of a proposal for an extension, for a new contract or for the agreed vacation of the property, before filing the possession claim.
Requiring a MASC in possession claims based on expiry of the term creates tension between the aim of fostering negotiation and the need not to place undue obstacles in the way of the landlord's right to recover possession when the contract comes to an end. Catalan case law is beginning to outline criteria of flexibility, accepting that, in such cases, a clear demand to vacate the property, coupled with an offer to discuss timing or conditions, may be regarded as a sufficient attempt at negotiation, provided that it is properly documented.
4.Evidence of the attempt at negotiation and judicial scrutiny of the MASC
LO 1/2025 places on the claimant the burden of evidencing the attempt at negotiation when filing the claim. That evidence may be provided by producing documents proving that a formal MASC took place, such as a mediation, a conciliation or an assisted negotiation, or by producing communications made by verifiable means that reflect a negotiating effort in good faith. The Catalan courts have begun to scrutinise the sufficiency of that evidence, examining not only whether communications exist but also their content, their form and how close in time they are to the claim.
The Civil Division of Girona has stated that the MASC must be genuine and not merely formal, which means that the claimant must have put forward specific proposals and allowed a reasonable time for a reply, and that the defendant must have had a real opportunity to take part in the negotiation. A generic or merely intimidating communication is not considered sufficient, nor is a negotiating effort carried out long before the claim and not followed up. Judicial scrutiny is directed at preventing the requirement from being deprived of content by purely ritual steps.
This scrutiny in turn raises questions of legal certainty and of workload for the courts. The need to examine the content of the prior communications and to assess the parties' good faith may complicate the admission stage and give rise to divergent decisions. Litigation practice will have to adapt, designing MASC strategies that meet minimum standards of seriousness and carefully documenting communications and proposals.
5.New procedural prerequisites for tenancy claims
Taken as a whole, LO 1/2025 has added a new layer of procedural prerequisites to tenancy claims. In addition to the traditional requirements, such as determining the value of the claim, evidencing the tenancy relationship and, where applicable, the prior demand that bars reinstatement, the parties must now evidence a prior attempt at negotiation or a prior MASC. A failure to comply may lead to the claim not being admitted or to the grant of a period in which to remedy the defect, which delays the start of the proceedings and may affect the effectiveness of possession claims.
For the landlord, this means having to build prior MASC into its ordinary practice, designed in such a way as not to compromise its legal position unduly while meeting the standards of good faith and of content required by the courts. For the tenant, the new requirement opens up scope for negotiation and for the search for alternatives to eviction, although the absence of agreement will not ultimately prevent the claim from being filed.
In Catalonia, the coexistence of this requirement with other mechanisms, such as mandatory social rent in certain situations of vulnerability, rent caps in rent-stressed areas and owners' association bans on tourist use, creates a complex landscape in which procedural prerequisites, administrative obligations and penalty regimes intersect. Drawing the line correctly between each of these levels will be essential in order to avoid confusion and to safeguard both the protection of tenants' rights and the legal certainty of landlords.
6.Conclusions
LO 1/2025 has brought about a change of paradigm in tenancy proceedings by requiring, as a general rule, a prior negotiating effort as a pre-action requirement. In possession claims and rent claims, this requirement is added to the traditional procedural prerequisites and calls for a rethinking of pre-action strategy. Catalan case law, with criteria such as those of the Civil Division of Girona, is beginning to define the contours of the MASC that is required, insisting on scrutiny of the content, the form and the timing of the attempt at negotiation.
For litigation practice, it is essential to draw a clear distinction between the MASC as a procedural requirement, the specific administrative obligations, such as mandatory social rent in certain situations, and the associated penalty regimes. Success in the defence of the interests of landlords and tenants will depend, to a large extent, on the ability to devise strategies that incorporate these new procedural prerequisites, to document the negotiating effort properly and to anticipate the criteria of judicial scrutiny that are becoming settled in the Catalan courts.
