In tenancy lawsuits, there is a common but little discussed situation: when the Judge has already decided that the Tenant must pay the rents he stopped covering and vacate the real estate, the Tenant can file an amparo to challenge that decision.

While this amparo is resolved, the Tenant may request that the execution of that sentence be suspended, that is, not to pay the rents convicted in the judgment and that they do not yet remove him from the property.

To this end, the Tenant who promotes the amparo must grant a guarantee (money or equivalent) to guarantee the damages caused to the Landlord, and finally, to suspend the execution of the judgment.

From this, a key question emerges:

Does that money really compensate for the damages caused to the Landlord by the suspension?

To this end, it is important to establish what damages and losses may be caused to the Landlord by this suspension:

• You can't collect the rents you already earned in the lease trial.
• Nor can you collect the income that continues to be generated.
• You cannot use or rent the property to another person.

In a nutshell: you lose real money month after month for as long as the Amparo Trial lasts.

How are these elements calculated by the courts?

In the State of Nuevo León, the courts set the amount of the guarantee, but they often do so insufficiently.

They generally determine this using economic indicators such as the National Consumer Price Index (INPC) and the Equilibrium Interbank Interest Rate (TIIE), projected at an estimated period of six (6) months — the average duration of the Amparo Judgment.

However, this estimated period of six (6) months does not correspond to reality, since the trial can last up to approximately two (2) years.

Under this approach:

• Damages are calculated based on income inflation.
• Damages are calculated based on the financial performance of that money.

At first glance, this method seems like a technical way to do it. But in reality, it doesn't reflect what the owner of the property actually loses.

What should the warranty cover under the Amparo Act?

In accordance with Article 132 of the Amparo Act, the guarantee must be SUFFICIENT and have as its purpose:

• Repair the damage: that is, the money that is actually lost.
• Compensate for damages: the money that was not earned.

The problem of using the INPC and the TIIE

Instead of measuring what the owner actually loses, financial formulas are used that do not reflect reality. This causes two (2) main problems:

• No real analysis is performed to calculate damages.
• Fixed guarantees are usually much lower than what is actually lost.

How should the warranty be calculated?

In leasing lawsuits, damages can be determined with simple arithmetic calculations that more accurately reflect the actual impact suffered by the Landlord, based on:

• The overdue income recognized in the judgment.
• The income that will continue to be generated during the processing of the amparo lawsuit.
• The impossibility of disposing of the property for the duration of the procedure.

Conclusion

The guarantee derived from an Amparo Judgment regarding leasing should not be based solely on economic indicators of inflation and interest, but should reflect the money that the owner of the property actually ceases to receive while the amparo lasts. Otherwise, a measure that seeks to be just ends up causing real harm and harm to the owner.

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