Libro Segundo Título III. Juicio sumario

The following shall be processed in a summary trial:

1º.Lease and eviction matters.

2º.The delivery of movable property, other than money.

3º.The rescission of contracts.

4º.The establishment of civil liability against public officials and public employees.

5º.Interdicts.

6º.Those which, by provision of the Law or by agreement of the parties, must be pursued in this proceeding.

All provisions of the ordinary trial are applicable to the summary trial, insofar as they do not conflict with what is prescribed in this Title.

Persons capable of binding themselves may, by express agreement executed in a public deed, submit to summary proceedings to resolve their disputes.

Once the agreement has been concluded, the decision may not be varied; but if the proceedings initiated, by their nature, should have been heard in an ordinary trial, an appeal in cassation shall lie.

Within the second day after being summoned, the defendant may assert the preliminary defenses referred to in Article 116, which shall be resolved by the procedure for incidents.

However, at any stage of the proceedings the defendant may raise the defenses of lis pendens, lack of legal capacity, lack of personality, lack of representative authority, res judicata, lapse, limitation period and settlement, which shall be decided in the judgment.

The time limit for answering the claim is three days, on which occasion the defendant must raise the peremptory defenses he may have against the plaintiff's claim.

Defenses arising after the answer to the claim, as well as those relating to payment and set-off, may be raised in any instance and shall be decided in the judgment.

The evidence period shall be fifteen days.

The hearing shall be held within a period of not more than ten days, counted from the expiry of the evidence period.

The judgment must be rendered within the following five days.

Any of the parties that files an appeal against a decision that is not the judgment shall incur payment of costs and a fine of twenty-five quetzales to be imposed by the Second Instance Tribunal, if the decision is affirmed or the appeal is declared inadmissible.

All questions arising in connection with the lease contract shall be heard under the procedure referred to in this Title, unless otherwise provided by law.

The claim to vacate may be brought by the owner, by one who has delivered an immovable to another with the obligation to return it, or by those who prove that they have the right to possess the immovable under any lawful title; and it lies against every mere holder and the intruder or against one who received the immovable subject to the aforementioned obligation.

The eviction shall affect the tenant, the sublessees and any other occupants of the property under any title.

For these purposes, the tenant shall be deemed representative of all persons mentioned in the preceding paragraph, it being sufficient that the notifications be made to him.

The plaintiff may request the attachment of sufficient property to cover the liabilities to which the defendant is subject under the contract; and the judge shall decree it preventively.

If, with the documents submitted by the plaintiff with his claim, the legal relationship asserted by him is proved, the judge, when summoning the defendant, shall warn him that, if he does not object within the three-day period available to him to answer the claim, eviction shall be ordered without further proceedings.

If there is no opposition, the judge shall decree eviction, setting the following time limits:

1.15 days in the case of houses or residential premises.

2.30 days in the case of a commercial or industrial establishment.

3.40 days in the case of rural properties.

These time limits are non-waivable and non-extendable.

If the documents submitted with the claim are private, the warning shall be effective only if they are signed by the defendant and have not been objected to by him within the three-day period mentioned in this article.

Upon expiration of the time periods fixed for vacating without such vacating having been effected, the judge shall order the eviction, at the lessee's expense.

If on the property there should be cultivation works, plantings or any other things that the lessee may claim as his property, the kind, extent and condition of the things claimed must be placed on record, without such claim preventing the eviction.

Once the eviction has been carried out, the appraisal of the things claimed shall proceed.

Payment or delivery of the things claimed shall be governed by what is stipulated in the contract and, failing that, by what is provided on improvements in the laws governing obligations and contracts.

Any question arising in this respect shall be conducted in the form of an incident.

Only orders resolving preliminary defenses and the judgment are appealable. For the appeal to be granted, the appellant lessee must attach to their request the document proving current payment of rents or having deposited the rent within the trial.

When the executive proceeding does not apply, the summary trial applies for the delivery of things other than money that are owed by virtue of the Law, the will, the contract, the administrative decision or the unilateral declaration of will in cases in which the latter is legally binding.

In these cases, the obligation to deliver must be evidenced in documentary form.

The summary trial also lies in claims for rescission of contracts that the creditor has performed on its part.

In this case, the ordinary route may also be chosen.

The civil liability of public officials and public employees applies in the cases in which the law expressly establishes it; and it shall be claimed before the judge of First Instance by the injured party or their successors.

The civil liability of judges and magistrates shall be pursued before the immediately superior tribunal. If those liable are magistrates of the Supreme Court of Justice, the tribunal to try them shall be organized in accordance with Article 11 of the Constitutive Law of the Judicial Branch.

Against the judgment, an appeal shall lie before the Superior Tribunal; but if it concerns the liability of the magistrates of the Supreme Court of Justice, no remedies other than clarification, expansion and reconsideration shall lie.

Interdicts lie only with respect to immovable property and in no way affect questions of ownership nor of definitive possession. In them nothing shall be decided regarding ownership.

Interdicts are:

1º.For protection of possession or holding;

2º.For dispossession.

3º.For demarcation and delimitation.

4º.For new or dangerous work.

The claim shall not be rejected on account of having erroneously denominated the interdict that legally lies, provided that from the facts alleged and proved it appears that a right of possession has been violated. In such case, the judge shall decide in accordance with the rules of the interdict that lies, to restore things to the state prior to the act that gave rise to the claim.

Whoever has been defeated in the trial of ownership or in the plenary of possession may not make use of the interdicts with respect to the same thing.

The party defeated in any interdict may thereafter make use of the plenary trial of possession, and once it has been acquired, it shall not be interrupted, even if a claim of ownership is filed, until the final judgment.

Interdictal actions may only be filed within the year following the date on which the act giving rise to them occurred.

If the claimant is not the owner, the latter shall be summoned, granting him a hearing for three days.

The judge may adopt all precautionary measures that the judge considers necessary in view of the circumstances.

This interdict lies when a person in possession or holding of immovable property is disturbed therein by acts manifesting the intention to dispossess him.

The depositary, the administrator or any person who possesses on behalf of another may also request to be protected in his holding or possession.

The evidence of possession or holding shall be confined to the fact of current possession. If the claim is sustained, the judge shall order that the claimant be maintained in possession or holding; shall condemn the disturber to costs and to damage and losses, which he shall fix prudentially if violence had been exercised, without prejudice to criminal liabilities.

Whoever has possession or holding of an immovable property or real right, who has been dispossessed, with force or without it, without having been summoned, heard and defeated at trial, may request restitution before the respective judge, setting forth the fact of the dispossession, his possession and the name of the dispossessor; and shall offer evidence of the elements of having possessed and having ceased to possess.

If the defendant does not oppose, or if the elements of the claim are proved by the evidence, the judge shall order restitution, condemning the dispossessor to costs and to the return of fruits; and if violence has occurred, the dispossessor shall also be condemned to payment of damages and losses, which the judge shall fix prudentially, the defendant remaining subject to any other liabilities to which he may have given rise.

The interdict for dispossession also applies when the judge has deprived any person of his possession without prior summons and hearing.

If the orders that caused the dispossession were issued by a judge hearing in First Instance, restitution shall be requested before the Superior Tribunal.

If the appeal against the order that caused the dispossession has not been filed, the dispossessed person may request restitution before the Superior Tribunal within the year following the dispossession. For such purpose, the case file shall be requested from the lower judge, so that he remits them with his report within two days; and the claim shall be processed as in First Instance, with the intervention of the Public Prosecutor's Office.

If the appeal has been filed against the decisions causing the dispossession, the recourse indicated in the preceding paragraph may not be used.

The dispossessing judge shall be ordered to pay the costs and to make reparation for the damage and losses that may have been caused, prudentially assessed by the Tribunal; being, moreover, liable in criminal law.

If judicial dispossession is not proved, the person who filed the claim shall pay the costs and incur a fine of fifty quetzales to be imposed on him in the respective judgment.

This interdict lies when there has been an alteration of boundaries between estates, by removing the fences or boundary markers and placing them in a place different from that which they had, thereby creating a new boundary in a place to which it does not correspond.

The claim shall state:

1º.The name, municipal district, boundaries and location of the property.

2º.The part or parts in which the boundary has been altered.

3º.The name of the person or persons who have made the alteration, if known; and the names of the adjoining owners who may have an interest in the demarcation.

4º.The place where it is requested that the boundary markers, fences or enclosures be placed, attaching the titles and other documents useful for the proceeding.

The evidence shall be limited to establishing whether there has been alteration of boundaries or boundary markers and who made it or ordered it to be made.

The judge shall conduct a judicial inspection, in accordance with the rules of Article 174. Once the office has been conferred upon the experts, a day shall be set to carry out the proceeding, warning the interested parties and the adjoining owners to present therein their respective evidence. A record of the proceeding shall be drawn up in which everything performed shall be described, including the opinion of the experts, which shall be signed by all those who were present, if they are able to do so.

If the alteration is proven, restitution shall be ordered at the expense of the person who made it or who ordered it, who shall be liable for the costs of the trial and for the damage and losses, prudentially fixed by the judge, and shall furthermore remain subject to the resulting criminal liabilities.

New work that causes public damage produces a popular action, which may be exercised judicially or before the administrative authority.

When new work harms a private individual, only such individual has the right to bring the interdict.

A person who has a right to water as motive power may denounce the new work when thereby the course is obstructed or the volume or force of the water whose enjoyment belongs to such person is diminished.

If the judge deems it just, he may order the immediate suspension of the work, but the owner thereof shall be authorized to continue it if he gives security for the outcome of the trial and for damage and losses.

The judge, however, shall allow him such works as are absolutely indispensable for the preservation of what has been built.

No appeal shall lie against this decision.

If the work is dangerous, or the construction due to its poor condition could cause damage, or if there are trees from which such damage may originate, the judge shall immediately order the safety measures he deems necessary or the demolition of the work, construction or tree, without further appeal.

Upon admitting the claim to proceedings, the judge shall order the judicial inspection of the work, setting day and time for such purpose.

The judge may conduct the inspection immediately, according to the circumstances, without need for prior notification to the other party.

If the suspension is decreed and the owner of the work fails to attend the judicial inspection, the judge shall issue the warning to the director or person in charge of the work and, in his absence, to the workers, to immediately suspend the work, under penalty of being punished as disobedient.

The respective record shall detail the state in which the work is found at the time of the suspension.

At any time and upon request of a party, the judge may order the demolition of what was built contrary to the suspension order, at the expense of the offender.

In the judgment, the judge shall rule on whether definitive suspension or demolition of the work is proper, ordering the losing party to pay costs.

If definitive suspension is proper, immediate execution of the ruling shall be ordered; and if demolition of the work is proper, a time limit shall be set for carrying it out at the defendant's expense.