Urban Rental Law in Spain – Spain’s Tenancy Act (Ley de Arrendamientos Urbanos, LAU)

Lawyer Raymundo Larraín Nesbitt gives us an overview of the urban rental law in Spain (or LAU as it is known in Spanish) which is applied nationwide. This law rules on long term tenancy agreements, amongst other rental types.

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By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of May 2016

Introduction

The importance of the LAU (Spain’s Tenancy Act) cannot be understated as it constitutes the backbone of most tenancy agreements in Spain.

It should be noted I have greatly simplified the LAU for ease of comprehension but in truth its intricacies and nuances are far more complex than I care to explain. It is highly advisable that readers interested on the matter browse the section below on ‘related articles’ (at the end of this article) which are focus-specific and deal with tenant evictions for example.

To better understand its latest incarnation from 1994 it becomes necessary that I digress with a brief historic recap that helps to explain how we got here in the first place.

Historic recap

Post-civil war Spain suffered a chronic housing shortage. At the time families were large and needed all the protection they could muster from Authorities. This strong bias towards the protection of tenant rights became so deeply embedded in the psyche of lawmakers that it pervades all rental laws even to this very day.

As a general rule a tenancy agreement is ruled by the rental law that was in effect at the time of its signing. We can broadly distinguish the following rental laws:

•    Rental law of 1.964 (texto refundido).
•    Decreto Boyer of 1.985.
•    Rental law 29/1994 of 29th of November – Spain´s Tenancy Act (often abbreviated to LAU in Spanish).
•    Law 4/2013, of 4th of June which significantly amends the LAU of 1.994. More on these changes in my in-depth article New Measures to Bolster Spain’s Ailing Rental Market.

The law from 1.964 created some obscene anomalies called ‘alquileres de renta antigua’ which basically forced landlords to keep renting out to tenants during their whole lifetime at a mandatory fee which in some cases was shockingly ten times below the market price (sic) in prime locations in Madrid, Barcelona and elsewhere. Even worse, the widow and/or children could ‘inherit’ the tenant’s position and also be entitled to a ridiculously low-priced rental for the remainder of their lives. This created perverse surreal situations that would even make Kafka blush. Needless to say this was hugely detrimental to the interests of landlords which were afraid to rent out.

As newer rental laws were passed this tenant bias has been gradually watered down to within ‘reasonable’ limits more in line with the today´s market reality.

The law which is currently in force is the LAU from 1.994 with the amendments brought about in 2.013. It is this law that I will be analysing point by point going forward. This law still holds a pro-tenant whiff albeit to a much lesser extent than its predecessors.

Legal Framework

Urban rental laws are ruled by both the Civil Code (articles les 1.542 et seq.) and by the LAU of 1.994.

The Civil Code acts only in a subsidiary manner on what is not expressly ruled by the LAU which has pre-eminence.

Scope of the law

The LAU deals with both long term and short-term rentals, among other rental types (i.e. commercial lets as well).

As a general rule, long term rentals are very regulated and tenants are very protected having a number of rights and entitlements. There is a clearly a pro-tenant bias as outlined in the historic recap section above. Lawmakers are drawn to protect the weak party, the tenant.

Short-term rentals (alquileres de temporada) on the other hand have a much greater degree of flexibility and freedom to negotiate the tenancy´s clauses without being constrained by rules. This is because lawmakers regard both parties as equals and therefor leave to them to rule on their contractual relation exercising a minimum degree of intervention.

The afor goes on to explain why some landlords try to pass off long term rentals as if they were short-term rentals to circumvent all long term tenant´s rights. This seldom works out in practice and when the tenancy agreement is challenged at court it is labelled as a long term rental. More on this in a section below on the eleven-month contract myth.

                                           

Ley de Arrendamientos Urbanos (LAU)

 

Rental deposit

We have to distinguish whether a dwelling is used, or not, as permanent abode.

a.    As a permanent abode

E.g. standard tenancy agreement to live in a property for several months

By law the deposit is one-month´s rental and paid in cash. The parties are NOT free to negotiate a higher deposit. Demanding a two-month deposit, for example, is null and void. Normally in Spain´s 17 regions this deposit is paid into an escrow account that is safeguarded by the Administration to ensure tenants recover their deposit (less any damages).

For example, in the region of Andalusia you need to comply and submit model 806. Additionally, the Administration is legally compelled to refund a tenant his rental deposit (less damages) within one month after the tenancy agreement is terminated. If it takes longer delay interests accrue which currently are significantly higher than what you can expect from a high street lender.

In practice, largely due to ignorance, rental deposits are paid by tenants to landlords (not to third parties such as public Administrations) which may create serious issues down the line when the tenancy agreement is terminated and the tenant exercises his right to recover his deposit as some landlords are notoriously reluctant to refund them unless legal action is taken against them.

b.    Use other than a permanent abode

E.g. commercial premises, or a dwelling which purpose is not to be used as a permanent abode

The law states it will be a minimum of a two-month deposit. The parties are free however to increase the amount.

                                         

I. Use of a Property as Permanent Place of Abode

 

Rental

As stated in the article´s introduction even today´s most recent rental law incarnation is somewhat pro-tenant. Specifically article 6 states that any agreement made contrary to Title II of the LAU will be null and void.

A tenant does not lose his legal position even if he stops living in the property, as long as he is not legally separated or divorced, and his spouse and or his underage children still continue living in it, he will still be regarded for all intents and purpose as a tenant.

•    Lease

This takes place when the tenant cedes his legal position in the contract to a third party who becomes the new tenant. It is only possible with the written authorisation of the landlord. Landlords can word a tenancy agreement to forbid leases.

•    Sublet

This takes place when the tenant in turn sublets rooms or section of the house to third parties. Only partial sublets are allowed, not whole. The landlord must give his prior consent in writing. The sublet must always be for a rental inferior to the main one. Subletters are not entitled to the mandatory or tacit contract renewals explained below, only tenants. A landlord can however word into the tenancy agreement to forbid sublets.

•    Duration

For tenancy agreements signed after the 5th of June 2.013 the following rules apply. Tenancy agreements signed before said date have a different set of rules which can be very convoluted.

If no period is specified it is over understood the rental will be for one year. A long term rental is not defined by renting to the same individual for a period of time equal or greater than12 months. This is a common blunder. A two-month rental can be for example regarded as long term by a judge. What matters is not the duration of a rental but the purpose which is given to a property. If the property is used as a permanent abode then it is regarded as a long term rental irrespective of whether a rental lasts 3 years, one year or six months.

a.    Mandatory renewal: Landlords are legally compelled to renew the rental for annual periods up to three years (before 2.013 it was five years). Tenants, at their own discretion, may opt on whether they choose to renew or not for a further year (up to a total of three years). In other words, landlords are at the expense of a tenant´s whim on whether he wants to stay in the property for a total of 3 years, landlords have no say.

•    Renewal notification period

Tenants must notify their landlords with at least 30 (natural) days of their intention to renew their contracts for a further 12 months.

•    Exception to mandatory rental renewal

After one year, landlords are given the opportunity to opt out of it providing one of the follow-ing cases is met:

Landlord notifies his tenant with two months’ notice he needs the property for himself or else for a first degree relative as a result of separation, divorce or marriage nullity declared by a le-gal ruling. If a landlord does not occupy the property himself or else a relative of his, the now ex-tenant is entitled at his choice to either compensation or else to return to his former home (costs of moving will be borne by the landlord).

b.    Tacit renewal: if after three years of rental none of the parties notifies the other giving at least 30 days’ notice then the rental is renewed for a further year (totalling four years).

•    Tenant wishes to terminate the rental agreement ahead of expiry date

A tenant can legally opt out of the tenancy providing more than six months have elapsed since the contract came into force giving his landlord at least 30 days’ notice. The parties are free to negotiate a compensation to the landlord in such a case on the lost rental.

Notwithstanding the spouse or partner of the tenant may opt to remain in the property in which case they must notify the landlord up to 30 days after the tenant leaves the property. The wife will continue to pay the rental in exactly the same conditions as before.

Rental fee

There is freedom to negotiate on its terms. If nothing is agreed, it will be monthly (a landlord cannot request more than one month´s payment ahead) during the first seven days of every month.

A landlord must give his tenant an invoice for every month´s rental – this is mandatory – unless payment is agreed, for example, by bank transfer in which case there is more than enough prove of payment.

The rental will be updated yearly according to a mutually accepted financial benchmark such as the IPC (Spanish Consumer Price Index) which offsets the effects of inflation bringing it in line with today´s values. This indicator is currently negative.

•    Improvements

If a landlord carries out refurbishment works that constitute an objective improvement of the property, i.e. installs a Jacuzzi, then he is entitled to increase the rental.

•    Utility expenses

As a general rule, all expenses subject of an individualised consumption meter reading (gas, water, electricity etc.) are borne by a tenant.

•    Taxes and Community fees

Normally a landlord is responsible for paying IBI tax (akin to the UKs Council tax) and the community fees. But it can be agreed otherwise if both parties accept.

•    Refurbishment & maintenance expenses

It is the landlord´s responsibility to pay for these. If these extend more than 20 days the tenant is entitled to a reduction in the rental in proportion to the surface he can no longer use as a re-sult of the ongoing works.

•    Damages

If a damage is due to normal wear and tear, i.e. leaking faucet or faulty washing machine, then it is the tenant who must pay for it. It is presumed that all household goods and kitchen appli-ances are handed over in perfect working order at the start of a rental. The onus to prove otherwise falls on a tenant. Articles 1.562 – 1.564 SCC. Which is why it is highly advisable a tenant carries out a thorough check of all the house (snagging list pointing out any flaws or deficien-cies) prior to taking possession of the property. A tenant can categorically not withhold rental money as a result of, for example, a faulty household appliance or defective pool lights or engine. More on this in my article Renting in Spain: Top Ten Mistakes.

Pre-emption and Buyout rights

Tenants have a series of rights that landlords must respect when it comes to selling the property. These rights can be enforced at a law court (and frequently are).

i)    Tanteo (pre-emption right): the landlord who wishes to sell on a property is legally bound to notify his tenant of the sales price and other key sales conditions. The tenant has up to thirty days to notify his landlord on whether he wants to exercise his right of buying the property with these same conditions. If he is interested in buying it outright, a tenant is first in line and has priority to jump over any other buyer.

ii)    Retracto (buyout right): if the landlord failed to notify the tenant of his intention to sell on the property the tenant can file a law suit once the new buyer notifies him of the sale. The tenant will have thirty days as from the time the new owner notifies him to exercise his right to occupy the property. The tenant will need to come up with the money to buy the property in that period and lodge it before a law court.

Waiving pre/emption and buyout rights

Both landlord and tenant may agree that a tenant relinquishes his two rights. This is frequently agreed and built into tenancy agreements. Needless to say, this only benefits the landlord, not the tenant.

This can also take place when a single buyer buys all the properties in one building or when a landlord sells multiple properties within the same building. In these two cases a tenant’s pref-erential acquisition rights are waived as they could jeopardize a larger transaction

Lodging a Long Term Rental at the Land Registry – Advantages

Long term tenants are advised to lodge their long term tenancy agreements at the Land Registry for their own protection against third parties i.e. landlord defaults his mortgage and falls into arrears. His lender executes the contract and attempts to repossess the property. A tenant´s po-sition is stronger if his tenancy agreement was already lodged at the Land Registry. He can in fact negotiate with the lender to leave ahead of the rental´s expiry date in exchange of a suita-ble compensation for his aggravation.

Contractual termination

Either party can denounce the tenancy agreement for breach of contract based on art. 1.124 of the SCC.

Reasons which allow a landlord to terminate the tenancy agreement ahead of the expiry date:

•    Lack of payment
•    No deposit fee paid
•    Non-consensual subletting or leasing
•    Damages caused to the property ex profeso or non-consensual works carried out.
•    Activities which are deemed bothersome, unhealthy, hazardous or illegal.
•    The dwelling ceases to be a permanent abode and is used for other purposes.

Reasons which entitle a tenant to terminate the tenancy agreement ahead of the expiry date:

•    The landlord fails to carry out the necessary maintenance or repair work to which he is obliged.
•    The disruption in the use of the dwelling caused by a landlord by way law or fact.

 

II. Use of a Property other than as Permanent Place of Abode

 

Broadly these refer to renting out a property to someone who is not going to use it as his per-manent abode or residence.

Properties and uses include, but are not limited to, the following ad exemplum:

•    Arrendamientos de temporada (summer or short-term lets as opposed to long term rentals)
•    Commercial lets
•    Professional lets
•    Teaching outlets
•    Industrial outlets

Freedom of Negotiation

Lawmakers understand that both parties are in equal rights. For this reason, they do not believe that one of them is in need to be ‘tutored’ by way of laws; think of a businessman who rents out a commercial premise. The law doesn´t think that a tenant, who is a professional, is in a weak position and therefor is in no need of protection.

This translates into almost total freedom between the parties to adopt the clauses they think are best to rule on their contractual obligations so long as they do not oppose the laws, the morality or public order.

In such cases the parties will be subject in first place to what they have contractually agreed, to the LAU in what they have not expressly ruled and finally and in last instance to the Spanish Civil Code.

The Eleven-Month Contract Myth

Early on in my career I heard of this ‘magic’ contract that was meant to be the universal panacea to all landlords’ griefs; behold the power of the eleven-month contract (roll drum)! This was a contract devised to supposedly deviously circumvent the LAU and its mandatory stipulations that (overly) protect tenants at the cost of landlords.

Well I´m sorry to break it out but eleven-month contracts are just poppycock. They are regularly quashed in Spanish law courts every day. Anyone who signs such a tenancy agreement deluding themselves into thinking they can magically skip all the tenant rights I have meticulously laid above to pass off the contract as short-term let or as an arrendamiento de temporada instead of a long term rental is in for a rough (and costly) ride.

It doesn´t matter one iota what the parties to a rental contract want to label or call it. What ultimately matters to a judge, who wields the power, is the use that is given to a property. If the property is used by a family, the kids go to school on a daily basis, the wife and husband work, they have hired high-speed internet services and or cable tv you can call it an eleven-month contract all you want but the judge will rule the property is ultimately being used as a permanent abode and therefor merits the full protection of the LAU. In which case all the rights I have painstakingly collated in the first roman numeral above will apply i.e. mandatory three-year renewal at the sole choice of a tenant amongst many others.

Private Holiday Rentals

Spain is divided administratively into 17 regions. Since 2.013 many have passed their own laws on holiday lets which, by definition, are short-term rentals.

Private holiday lets are ruled by these regional decrees and are expressly excluded from the LAU that I have described thoroughout this article. More on this can be gleaned from my in-depth article on the matter: Holiday Rental Laws in Spain. This article contains a full list, region-by-region, of all the holiday rental laws currently in force. Residential holiday lets and rural rentals are ruled by different regional laws.

As an example in the region of Andalusia:

•    Rural rentals are ruled by: Decree 20/2002: Andalusia’s Holiday Rural Rental Decree.
•    Residential property (private holiday rentals) are ruled by: Holiday Rental Laws in Andalusia (Decree 28/2016).

Each region in Spain has similar laws in place. It is advisable landlords acquaint themselves with them as some regions are fairly restrictive (i.e. Balears) and require a licence to rent out and impose hefty fines on landlords for non-compliance.

Energy Performance Certificate

Following new regulation, if you rent out in Spain you will need to hand over to your tenant what is known as an Energy Performance Certificate (or EPC). This includes both short-term (i.e. holiday rentals) and long term lets. Non-compliance may result in a landlord paying fines to the Autonomous Community where the property is located. Just follow this link to my blog post which explains in detail what an EPC is and how to get one.

Conclusion

You should hire a lawyer from the onset before you commit yourself signing on the dotted line of a tenancy agreement. Quite often these contracts are flawed or have clauses which are null and void as templates are frequently used which tend to perpetuate errors.

Unfortunately, practice tells me that most clients only come to us after they have signed and have landed themselves in hot water. The legal fees they wanted to save themselves will now be threefold at least.

Bottom line, for your own good, hire a competent lawyer from the outstart before you sign a tenancy agreement or any other legal document for that matter. You will save yourself money and aggravation on the long run.


In memoriam Andreea Tulin

Le dedico este artículo a nuestra querida compañera del máster Andreea Tulin. La mejor de entre todos y mejor persona aún. Tus compañeros no te olvidamos. D.E.P.

Federico García Lorca. Romancero Gitano, Romance Sonámbulo.

Child prodigy, exquisite Spanish poet, playwright, and theatre director. Outstanding member of the Generation of 27. Assassinated at a young age by Nationalist forces shortly before the outbreak of the Spanish Civil War. His body was never found; his legend grows on.


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Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2016 © Raymundo Larraín Nesbitt. All rights reserved.

18 thoughts on “Urban Rental Law in Spain – Spain’s Tenancy Act (Ley de Arrendamientos Urbanos, LAU)”

  1. Profile photo of DominicDominic

    Hi Raymundo,

    great article, just one think not clear about.
    “Landlords are legally compelled to renew the rental for annual periods up to three years (before 2.013 it was five years). Tenants, at their own discretion, may opt on whether they choose to renew or not for a further year (up to a total of three years).
    Does that mean that after 12 months the tenant has to sign up to another 12 months and so on ? If after 15 months in the property I decide to leave, am I breaking the new annul agreement ?

    Thanks in advance !!! Dominic

    1. Profile photo of Raymundo Larraín NesbittRaymundo Larraín Nesbitt Post Author

      Morning Dominic,

      Thank you for your kind words.

      No it doesn’t mean that. Lanlords are forced to accept a tenant for a legal period of up to three years.

      Tenants however can opt out of the contract ahead of teh three years, of course.

      Self-quoting myself from teh article above:

      Tenant wishes to terminate the rental agreement ahead of expiry date

      “A tenant can legally opt out of the tenancy providing more than six months have elapsed since the contract came into force giving his landlord at least 30 days’ notice. The parties are free to negotiate a compensation to the landlord in such a case on the lost rental.”

      So if you decide to opt out of a contract before, say, the 12 months are up and more than 6 months have elapsed since you signed it then you may opt out providing you give your landlord 30 days’ notice. You will also need to compensate him on the lost rental that is pending completion.

      In your particular case you mention you want to terminate the Tenancy agreement after 15 months. As more than 6 months have elapsed since you signed it, you may opt out. However, as more than 12 months have passed it is understood you have renewed the contract tacitly for a further 12 months. So if you wish to leave on month 15, then you may find you will have to compensate financially your landlord for the remaining 9 months you will not be renting but to which you tacitly agreed to. Some landlords waive this compensation, others do not. In any case a landlord is legally entitled to compensation so he can demand it.

      Regards

  2. Profile photo of gooseygoosey

    Hello
    Great article – I wonder if you can help or point me in the direction of a lawyer to use. I have been in my property for 18 months I would like to stay there for longer than the 3 years and have mentioned this to my landlords, they said they wouldn’t rent out the property to me for longer than 3 years because then it gives the tenants too many rights. I have made it my home and spent money on it so would be really sad to have to leave I’ve also offered to pay more rent etc – any advice on what I can do would be much appreciated
    Many Thanks
    Hannah

    1. Profile photo of Raymundo Larraín NesbittRaymundo Larraín Nesbitt Post Author

      Hi Hannah,

      Thank you for your kind words.

      As per my article above, landlords must respect on long term rentals a mandatory renewal for a period up to three years (for urban renytal contracts post 2.013, it used to be five years). What this means is that a tenant can stay for three years in the property, at his own choice. If the landlord does not notify in time the tenant on the third year a tacit renewal operates and the tenant can stay a further year (totalling four years).

      So if a landlord notifies you before the third year of the rental is up that he no longer wishes you to stay in his property, you must vacate it or else face legal consequences (tenant eviction). There is nothing that can be done about it, sorry.

      I hope that answers your query.

      Regards

  3. Profile photo of Maxine TMaxine T

    Mark,

    Firstly thank you for such a straight forward sight I greatly appreciate being able to see practical, factual and legal information laid out so clearly.

    I just have a qualifying question to the information that you have detailed above, please.

    Background:
    I am a property of two residential and one commercial property in Andalucia and will certainly return to your services should I need them in regard to my own property in the future.

    My questions immediately relate to the property that I am living in as a tenant. My rental contract started on March 8th 2014 initial for a period of 2 years – this contract expired and was renewed without a new contract being physically signed by my payment of the rent as due.

    The 3rd year of my contract is up on March 7th 2017 and I have today received a “what’s app” message from my Landlady asking to visit the property and discuss the contract this coming Saturday February 11th

    From a legal standpoint my understanding as a Landlord and equally as a tenant was that as you state above;

    b. Tacit renewal: if after three years of rental none of the parties notifies the other giving at least 30 days’ notice then the rental is renewed for a further year (totalling four years).

    Therefore my qualifying questions would be this;
    a) As my contract started on March 8th and the end date would then be March 7th of the following year/s – would I be correct in calculating that the 30 days would be calculated back from the date the contract was due to end i.e.: March 7th and NOT the renewal date of March 8th? This point being fundamental as if it is calculated back from March 7th – then today being February 6th she has not given 30 days notice and therefore the contract is renewed?

    b) If however it is from the date that the new year would renew ie: March 8th so today February 6th would in fact be 30 days in advance, what form does that notice have to take for her to win a legal case to evict me. ie: Would a what’s app message stating simply – “to talk about the contract” hold any legal weight?

    c) To clarify – to legally to serve me notice that would stand up in court what form would that need to take, I am assuming at the very least an email clearly stating that notice is being served or a registered letter? If it is an email and I do not open does that constitute receipt of notice?

    d) Assuming that the period for my Landlady to serve notice legally has passed and the contract has automatically renewed under what terms is it renewed. Are those the same terms as before. I can only assume that if my landlady does not wish me to leave the house she wants to discuss a rental increase. My understanding is that as you state IPC is currently negative?

    e) If my landlady were to serve me two months notice that she wished to move into the property as her main residence again how long must she be in residence for? In other words could she move in for a matter of weeks and then rent to a 3rd party? I ask as a there is a waiting list for property now in my village and I am aware that my landlady has a friend who wishes to move here so her children can go to the excellent local school. So I am keen to understand how long she herself or her partner (they are not married but are parents to a child together) would need to be in residence before they could move out and re-let?

    f) My landlady neither used a property agent or a solicitor when we drew up and signed the original contract which was for a period of two years, this renewed last year without a further physical contract being drawn up, does this affect my rights as a tenant? i was advised at the time last year that it didn’t as I had a contract for the first two year and therefore under mandatory renewal the same rights were carried forward, however I was also advised at the time at the Mandatory renewal was for 5 years and reading your article I see clearly that has changed.

    g) While i did use a solicitor to check the contract I signed they did not advise me to pay the money to anyone but my Landlady and I also paid a two month deposit as is standard in this area (Benahavis, 29679, Malaga) does this affect my legal right to mandatory renewal for a further year?

    I apologise for the many clarifying questions unfortunately I do enjoy the same relationship with my landlady as my tenants and I do of communication and clarity. Given that I was under the false illusion that I had at least 2 more years mandatory tenancy in the house and can see that I have been incorrectly advised I am seeking clarity and legal, practical and factual information in order that I can be prepared for my meeting on Saturday.

    Many thanks,

    Maxine

    1. Profile photo of Raymundo Larraín NesbittRaymundo Larraín Nesbitt Post Author

      Morning Maxine,

      Mark runs and is the owner of SPI.

      Legal articles, such as the one above, are written by myself and not answered by Mark.

      I take it you want to address me, the solicitor who wrote the article, rather than Mark. I’m the guy with a serious face and a pink shirt which photographs are plastered all over the article and the replies section (see photo above). I also happen to sign the article. That said, we can now move on.

      The length of your queries exceed the format of a forum post and sincerely, in my opinion, you should be hiring a lawyer to address all your legal concerns as it is not the purpose of this site to provide legal advice in substition of paid for legal services.

      As the article specifies, a new amendment to Spain’s Tenancy Act came into force in 2.013 which brought about key changes. Amongst them is the mandatory renewal terms for a tenant. As your tenancy contract is from 2.014 you no longer have 5 years plus one, you have three years plus one.

      A whattsapp message is not acceptable and courts normally ignore them because they can be easily manipulated.

      The correct form is to send you a registered letter which you have to sign for advising your rental is up and will not be renewed.

      a) As my contract started on March 8th and the end date would then be March 7th of the following year/s – would I be correct in calculating that the 30 days would be calculated back from the date the contract was due to end i.e.: March 7th and NOT the renewal date of March 8th? This point being fundamental as if it is calculated back from March 7th – then today being February 6th she has not given 30 days notice and therefore the contract is renewed?

      The 30 days are calculated from the date the contract was due to end.

      b) If however it is from the date that the new year would renew ie: March 8th so today February 6th would in fact be 30 days in advance, what form does that notice have to take for her to win a legal case to evict me. ie: Would a what’s app message stating simply – “to talk about the contract” hold any legal weight?

      Already replied.

      c) To clarify – to legally to serve me notice that would stand up in court what form would that need to take, I am assuming at the very least an email clearly stating that notice is being served or a registered letter? If it is an email and I do not open does that constitute receipt of notice?

      Already replied.

      d) Assuming that the period for my Landlady to serve notice legally has passed and the contract has automatically renewed under what terms is it renewed. Are those the same terms as before. I can only assume that if my landlady does not wish me to leave the house she wants to discuss a rental increase. My understanding is that as you state IPC is currently negative?

      Yes, it is renewed in exactly the same terms. IPC benchmark was negative at the time of writing, not now. I believe it now at 3% for the 1st Q 2017 (mostly due to the huge increase in electrical bills).

      http://www.ine.es/

      e) If my landlady were to serve me two months notice that she wished to move into the property as her main residence again how long must she be in residence for? In other words could she move in for a matter of weeks and then rent to a 3rd party? I ask as a there is a waiting list for property now in my village and I am aware that my landlady has a friend who wishes to move here so her children can go to the excellent local school. So I am keen to understand how long she herself or her partner (they are not married but are parents to a child together) would need to be in residence before they could move out and re-let?

      She cannot relet. If she moves in for her own personal use it is precisely for that. If she’s caught reletting it to someone else she can be taken to court and she must pay for all your moving expenses and of course you are entitled to move back in.

      f) My landlady neither used a property agent or a solicitor when we drew up and signed the original contract which was for a period of two years, this renewed last year without a further physical contract being drawn up, does this affect my rights as a tenant? i was advised at the time last year that it didn’t as I had a contract for the first two year and therefore under mandatory renewal the same rights were carried forward, however I was also advised at the time at the Mandatory renewal was for 5 years and reading your article I see clearly that has changed.

      No, it doesn´t affect your rights. That’s the whole purpose of mandatory renewals. Yes, as I have written previously, Spain’s Tenancy Act was amended in June 2.013. Any urban tenancy agreement that was signed on or after the 5th June 2013 has a mandatory renewal date of three years plus one, solely at a tenant’s choice, not the landlord’s.

      g) While i did use a solicitor to check the contract I signed they did not advise me to pay the money to anyone but my Landlady and I also paid a two month deposit as is standard in this area (Benahavis, 29679, Malaga) does this affect my legal right to mandatory renewal for a further year?

      I’m glad you used a solicitor, we don´t bite (unless you get our first name wrong of course – in which case you get blacklisted). No, it doesn’t affect your statutory rights.

      I also live in Benahavis and it is one months’ rental deposit, not two. As I write in my article above, this is non-negotiable and is what the law rules. A different matter altogether are commercial premises where there is freedom to negotiate. So if you paid two months rental deposit, you overpaid, period. I apologise in advance for sounding pedantic but self-quoting myself is more time-efficient than having to re-write my content above:

      By law the deposit is one-month´s rental and paid in cash. The parties are NOT free to negotiate a higher deposit. Demanding a two-month deposit, for example, is null and void. Normally in Spain´s 17 regions this deposit is paid into an escrow account that is safeguarded by the Administration to ensure tenants recover their deposit (less any damages).

      I trust Maxine I have addressed your queries before your meeting next Saturday. Again, I stress you should hire a lawyer and ask these questions formally in lieu of seeking advice using forum posts on such important matters.

      Yes, I guess you were ill-advised on the mandatroy renewal date, unless I have missed something out from your detailed account.

      Regards
      Raymond (alas, not Mark)

  4. Profile photo of GavinBCNGavinBCN

    Hello Raymundo,

    I came across this article while doing some research.

    I am currently in the just coming to the end of the 4th year of my 5 year contract in my flat in Barcelona.

    My landlady has informed me she wants the flat back in 2 months for one her elderly relatives. She has offered to pay me the equivalent of 5 months rent by way of compensation on top of the fianza.

    I am inclined to believe her story as otherwise she could just sell.

    Is this legal? and also is that a fair amount if I do agree?

    I know I do not have to leave if I do not want to, as I have a valid contract, but am open to the idea, because of the compensation.

    1. Profile photo of Raymundo Larraín NesbittRaymundo Larraín Nesbitt Post Author

      Hi Gavin,

      Sounds like a good deal, I’d take it.

      As explained in my article above, landlords can request to have the property before the mandatory renewal is up for a number of reasons (in your case I take it it is five years plus one). One of these is to use the property for relatives. So yes, your landlady is indeed entitled to take the property back in this case.

      A five month compensations sounds good to me. Make sure you get it in writing and cash in before you move out though. Once you leave the property you lose your leverage to drive a bargain.

      Regards

  5. Profile photo of Maxine TMaxine T

    Raymond,

    My face is as pink as your shirt lol…. I hope that my genuine apology will ensure that I am removed from your blacklist I confess not having been blacklisted that this is a new position for me! And I would hope that should I ever be blacklisted again it would be with such a gracious and beneficial outcome

    I also hope that you will accept wholeheartedly my genuine and heartfelt apology for your humour and factual information. I feel informed and confident for my meeting Saturday to negotiate I hope a fair agreement for both my landlady and I.

    Given that we both live in the same village, how incredible is that??? I would very much like to arrange an appointment with you I have some small legal matters that I would appreciate advice as clear, constructive and legally factual as that you have contained here. It is rare in today’s world to find someone so honourable and giving of their time. I confess that this is the first time that I have ever used a forum and only did so from the content of your articles and the detailed, factual responses given and that you are a solicitor. This is an excellent service you have provided and I hope that it is beneficial to you and many more people.

    Please let me know when would be a convenient time for me to meet with you,

    With heart felt thanks and a slightly pink face,

    Maxine
    ps: I respect that self-repetition and being pedantic it clarifies and confirms my understanding quite perfectly!

  6. Profile photo of Raymundo Larraín NesbittRaymundo Larraín Nesbitt Post Author

    Hi Maxine,

    I wasn´t going to let you off the hook so easily, you know. At least not without poking some fun your way! You have taken it very gracefully I must say.

    I don´t live in the village itself (I only go there to eat at Los Abanicos from time to time). I live in one of the condominiums that sprawl the municipality.

    Sure, just PM me and we can arrange getting together for business. Thank you for your kind words, much appreciated.

    Regards
    Raymond

    PS. unblacklisted.

  7. Profile photo of Maxine TMaxine T

    Hi Raymond,

    Well the fun way graciously done and well deserved so any other response would have been well……ungracious lol.

    I will PM you and look forward to meeting,

    Kind regards,

    Maxine

    PS: Phew – that will make our appointment much less awkward!

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