I Bought a House at a Judicial Auction and It Is Occupied: the Three Scenarios and How Each One Is Resolved

Quick answer: it depends on who is inside, and that is the whole difference. If it is the judgment debtor, the practice of the courts is to request material delivery and the eviction order (lanzamiento) within the same enforcement proceedings, relying on the fact that in forced sales the judge acts as the legal representative of the transferor. If it is a tenant, you have to check whether their contract is enforceable against you: article 1962 of the Civil Code requires a lease granted by public deed to be honoured, and against the mortgage creditor only if it was also registered before the mortgage. And if it is a complete stranger, there is a new lawsuit, which since 2022 is processed through the monitorio procedure (an order for payment procedure) and no longer through the summary proceeding.

This is the blind spot of almost everyone who buys at a judicial auction. People work out the price and the margin, and they do not work out the time and the cost of getting whoever is inside to leave. That second calculation is the one that decides whether the deal was a good one.

The Three Scenarios

Why Delivery Can Be Requested Within the Same Proceedings

The basis lies in two rules worth knowing by heart. The third paragraph of article 671 of the Civil Code provides that in forced sales made by judicial decree the judge is the legal representative of the transferor. And the first paragraph of article 497 of the Code of Civil Procedure establishes that the deed is signed by the judge as the legal representative of the seller, leaving the successful bidder entitled to request registration.

To that is added article 1828 of the Civil Code, which imposes on the seller the obligation to deliver what has been sold. If the judge takes the place of the seller in the forced sale, delivery is part of what that sale covers. On that basis the courts agree to order material delivery and the eviction of the judgment debtor as a step within the same enforcement proceedings, without requiring a new declaratory lawsuit.

The Honest Warning: This Is a Contested Practice

That construction is not settled. In February 2024 the rule of the Civil Code on delivery of a property awarded at public auction was challenged before the Constitutional Court. And in August 2025 a new petition was filed, this time against the third paragraph of article 671 of the Civil Code and the first paragraph of article 497 of the Code of Civil Procedure, precisely because they empower the judge to order the eviction of the owner after the auction.

The underlying proposition is that the judge's legal representation extends to signing the deed, but not to ordering the eviction. It is not a closed debate, and it is worth knowing before buying on the assumption that the eviction will be automatic.

The Tenant: When the Contract Has to Be Honoured

This is the part that costs the most money when it is overlooked. Article 1962 of the Civil Code establishes who is required to honour a lease.

From that follows what has to be checked before bidding: the form of the lease contract, whether it is registered, and on what date in relation to the mortgage being enforced. With a lease by public deed registered beforehand, you are buying a property with a tenant and with a contract in force, and that is not a surprise you can complain about afterwards.

If the property is a rural property, the rule is not the same. Rural leases are governed by decree law 993, which requires the contract to be made by public deed or by private deed before two witnesses, and which sets out the purchaser's obligation to honour the lease in force under rules of its own. A contract that would not be enforceable against you in the city may well be enforceable against you in the countryside, and that detail completely changes the value of what is being auctioned.

The Third Party Occupant: What Changed in 2022

When the occupant is neither the judgment debtor nor a tenant, a new lawsuit has to be started, and here there was a quiet change that many successful bidders have still not taken on board. Until June 2022, that lawsuit was a summary proceeding. Law 21,461 removed comodato precario (revocable loan for use) from paragraph 6 of article 680 of the Code of Civil Procedure and, through its article 18-K, sent the precario action to the monitorio procedure of Law 18,101.

For the buyer at a judicial auction this comes down to a single question, and it is worth asking it before raising your hand: does the occupant have anything to show? If they have a contract with the previous owner, even one that is not enforceable against you, they will file an opposition, and the time calculation goes from months to years. The full detail of that discussion is in the guide to the precario proceeding.

What to Check Before the Auction, Not After

• Go and see the property. It sounds obvious and it is the thing people do least. Who lives there, since when, in what conditions and whether there is more than one household inside.
• Request the certificate of mortgages, encumbrances and prohibitions and check whether there is a registered lease, with what date and in relation to which mortgage.
• Review the entire enforcement file, not just the auction terms: who the judgment debtor is, whether there are pending third party claims (tercerías), whether there are nullity motions, whether there were earlier failed auctions.
• Request the property tax debt certificate for all periods. The debt follows the property, and we explain that in the guide to the limitation period for property tax.
• Check the common expenses if it is an apartment. It is the other debt that turns up afterwards and that nobody looked at.
• Verify the municipal status of what has been built. A property with extensions lacking final approval can still be bought, but it is not sold or financed in the same way afterwards.
• Compare the registered surface area with what is on the ground. If it does not match, the correction is a procedure of its own with deadlines of its own.

The Debts That Travel With the Property

The Mistake of Starting With the Wrong Action

When the occupant is a former tenant of the judgment debtor, many successful bidders file a precario claim in order to spare themselves the argument. It is the same mistake as in any other context: if there was a contract, there is no precario, and the claim is dismissed. With the added problem that in auction matters the dispute over the occupant's title sits at the centre of a live split in the case law, where one line of Supreme Court decisions holds that any title is enough for the claim to be dismissed and another requires that title to be enforceable against the current owner.

And against the judgment debtor themselves, precario is simply unnecessary, because delivery is requested within the enforcement proceedings. Starting a new lawsuit there means giving away months.

The Cost Almost Nobody Adds Up: the State of the Title

A property sold at a judicial auction arrives with its registration history intact, and that history can hold more than one surprise. It is common to find surface areas that do not match what is on the ground, boundaries described by references that no longer exist, or buildings that never entered the municipal register.

None of those things prevents the purchase, and all of them make the exit more expensive. If the registered surface area does not match, you have to correct the surface area and boundaries before selling. If what has been built has no final approval, it has to be regularised under the ley del mono (the building regularisation law) so that the next buyer can finance it. These are procedures with deadlines of their own, and it is worth having them in the calculation before raising your hand at the auction. For a sense of scale, the regularisation cost calculator gives a reference range.

Frequently Asked Questions

How long does it take on average to recover material possession?

There is no useful average, because the three scenarios are very different. The eviction of the judgment debtor within the same case is a matter of steps in a file that is already open, whereas a lawsuit against a third party starts from zero and can double in length if there is an opposition. What can be said is that anyone who does not find out who is occupying the property before bidding is buying without knowing the most important variable.

The judgment debtor says they are going to appeal. Does that stop delivery?

It can delay it, and that is exactly why there are petitions pending before the Constitutional Court on this point today. It is worth allowing for that margin in the calculation of the deal instead of assuming that delivery is immediate.

I bought the property and there is a lease by private instrument with an earlier date. Do I have to honour it?

Under article 1962, the obligation to honour the lease as regards someone who acquires for value applies when the contract was made by public deed. A private instrument, even with an earlier date, is normally not enforceable against you. The case of a rural property is different, because there decree law 993 accepts a private deed before two witnesses.

What if the occupant leaves the property destroyed before moving out?

It is a real risk in this type of transaction. Documenting the condition with a date, from the first visit and at every step, is what later allows you to make a claim. Without that record, the dispute is one person's word against the other's.

Can I negotiate the move out with the occupant?

It is frequently the most efficient option, above all when the scenario is that of a complete stranger and the alternative is a long lawsuit. What is worth doing is formalising the agreement with a fixed deadline and a handover record, so as not to be left with a verbal promise that is never kept. What you cannot do is force the departure by cutting off the utilities, because that carries a penalty of its own.

The property has property tax debt from before the auction. Do I pay it?

It is the typical and unpleasant scenario, because territorial tax attaches to the real estate. Two things have to be checked: which periods are still enforceable, and which encumbrances were registered and in what order. Not everything that appears on the statement has to be paid.

Can I enter the property if it is empty and the deed is already registered?

With the registration in your name and the property genuinely empty, the situation is different from an eviction. Even so it is worth doing it through the judicial delivery step and with a written record, because if someone appears later claiming that they were occupying it, that record is the only proof of the condition in which you received it and on what date.

The occupant is a family with children. Does anything change?

The law does not change, but the pace and the exposure do. The courts are more careful with carrying out the eviction and tend to look for departure deadlines. It is worth anticipating this in the calculation of the deal and exploring an agreement with a fixed deadline rather than a forced eviction.

Is it any use to request the early restitution under the Devuélveme mi casa law (Give Me Back My House)?

Not in this context. That precautionary measure is provided for within a lease lawsuit, for the case of destruction of the property or of the property being rendered unusable by the tenant. The successful bidder who has no contract with the occupant is not in that situation. The scope of that law is set out in the guide to the Devuélveme mi casa law.

How We Work On This

When people call us before the auction, which is when it is useful, we check three things: who is occupying the property, what is registered with the Real Estate Registrar regarding leases and encumbrances, and what debts are going to travel with the property. With that, the client decides on the basis of the real price of the deal and not the auction price.

When people call us afterwards, the first thing is to identify which of the three scenarios they are in, because that determines whether the step is taken within the enforcement proceedings or whether a lawsuit has to be started, and that difference is measured in months. In the third scenario we also assess how likely an opposition is, because since the 2022 reform that likelihood is what defines the real timeline.

We handle the court steps and the lawsuits through our civil litigation practice, and the prior review of the title and the encumbrances is a title study, which in auctions costs a fraction of what it costs to discover the problem afterwards. If what has been built has no final approval or the surface area does not match, we take it on through saneamiento, our title clearing practice.

Send us the property's roll number and the case number of the enforcement proceedings, and we will tell you who is occupying it according to the record, whether there is a lease enforceable against you, and through which route delivery should be requested.