HEALTHPLAN MAGAZINE

Are you concerned about the rights you have as a tenant when renting a property in Spain?

If so, you will be pleased to know that many of the existing tenancy laws have recently been updated, giving you further protection as a tenant in Spain when renting long-term.

The following article aims to outline the main laws and tenancy rights when leasing a property in Spain so that you are fully armed both before and after you sign a new contract.

Renting a property legally in Spain is a contract between two people so both parties must understand what their legal obligations are to one another.

Although this article is primarily aimed at the tenant and their rights, we have also included a section on the obligations of the tenant and the rights of the landlord.

Initial Inspection

Before you agree to anything or sign a contract, you need to inspect the property for any potential issues such as damage to furniture (if renting furnished), appliances, windows, doors, etc. You will also want to make sure everything works and that there is no dampness or mould present.

It’s important to do this at the outset, as if anything is damaged you will be covered. Secondly, you may be able to use it to either request a reduction in the rent or at least make the landlord aware that there is an issue that needs to be addressed.

If white goods are to be left at the property as part of the agreement, you will need to clarify who is responsible for the maintenance and any repairs that may need to be carried out. Such details should be included in the rental contract.

Taking photos of any potential issues is also important and can be used as evidence if you have to seek legal action.

Some owners and agents will take pictures of everything before you move in and ask you to sign as proof of the condition of the property at the point you moved in.

Verifying Ownership of the Property

Before you sign any tenancy agreement, it is good practice to verify that the person you are renting the property from, is the owner and not someone attempting to sublet the property to make a profit.

This is easily done by visiting the property registration website https://www.registradores.org/

Contract Duration and Termination

In Spain, there are two types of rental agreements, which are based on the length of occupation:

• Short-term (Contrato de Arrendamiento de Temporada) - A short-term rental agreement (Contrato de arrendamiento de temporada) is for a period of up to one year. These agreements, which are often referred to as ‘seasonal agreements’, are not extendable and you would have to vacate the property after the period listed in the contract has expired.
• Long-term (Arriendo de Vivienda) - A rental contract is considered to be long term in cases when the rental period is at least a year. Typically, such leases often are set for 12 months but can be extended following a discussion with the landlord.

In the case of long-term rentals, the duration of the tenancy agreement can be freely agreed upon by both parties before tenancy. However, under current Spanish rental law, the tenant has the right to rent a property for no less than five years, with the contract (Contrato de Arrendamiento) renewed annually.

If the landlord is a legal entity, the period is extended to seven years, renewable annually.

If the lease or contract does not stipulate the duration of the tenancy, a default of one year will be implied without prejudice to the tenant’s rights to extend up to the full five or seven years.

Once the first year of the contract has elapsed, the landlord (not a legal entity) has the right to give the tenant at least two months' notice, if, after the first year, they intend to occupy the property themselves or their relatives or a spouse in a final sentence of separation, divorce or marriage annulment. The tenant will then need to leave the premises within two months. However, this option must be included in the initial rental contract.

If after three months of the contract termination the property has not been used as a dwelling by the landlord or their relatives, the previous tenant has the right within 30 days to decide to re-occupy the premises under the previous contract conditions for up to five years, renewable annually.

The tenant may also claim for expenses incurred from the moment they were evicted to the point of reoccupation or they can claim up to one month's rent for each year up to five years. This is unless the landlord can prove that they did not reoccupy the premises due to ‘force majeure’, or due to unforeseen or unavoidable circumstances.

If after five years (seven if the landlord is a legal entity) have elapsed and neither party has notified the other at least four months in advance for the landlord and two months for the tenant, their intention to terminate the contract, it will automatically be extended annually for a maximum of three more years. This is commonly referred to as the ‘tacit’ or implied renewal period.

Early Termination of a Contract

A contract may be terminated early by the tenant after at least six months have passed, on the condition that they notify the landlord at least 30 days in advance.

Both parties may agree within the contract that in the event of a withdrawal, the tenant must indemnify or compensate the landlord with one month's rent for each year remaining on the contract. Any periods below one year must be proportionally compensated.

In some circumstances, a contract can be terminated by the party that has fulfilled its obligations against those that have not.

For example, the landlord may terminate the contract and evict the tenant if:-

• The tenant fails to pay the monthly rent
• The tenant fails to pay the deposit and any legitimate increases
• The tenant sublets the property without the landlord's consent
• The tenant causes any malicious damage to the property
• The tenant makes excessive noise or carries out any illegal, unhealthy or dangerous activities at the property
• The property is no longer being used as a primary residential dwelling.

A tenant may terminate the contract if:-

• The landlord does not carry out any essential repairs or maintenance to the property
• The landlord causes unnecessary disturbance to the tenant.

If the tenant dies, in most cases, a spouse, legal partner, or family member may legally take over the tenancy.

If within three months of the tenant’s death, the landlord is not notified and provided proof of the death in the form of a death certificate and provided with the identity of the person wishing to take over the tenancy, the contract will be terminated.

If the termination of the contract does occur, those who succeed the tenant shall be liable to pay the rent for the outstanding three-month period.

If there is nobody to take over the tenancy, the contract will automatically be terminated.

Rent Payments and Deposits

Before the commencement of any tenancy, the landlord has the right to ask for a maximum of one month’s rent as a security deposit, plus one month's rent.

The deposit may not be increased during the first five years of the tenancy (seven years if the landlord is a legal entity) but may be increased if a tenancy is extended beyond 5 years.

After the initial five-year tenancy period, the landlord can request an increase to the deposit so that it matches any increase made to the monthly rent amount.

Under the new legislation, any rent rise during a tenancy must not exceed the Consumer Price Index (CPI) or the measure of inflation. This will bring an end to rental contracts which include an obligatory annual rent increase.

Note that under the new Ley de Viviendas law, all payments including rent and deposits can no longer be paid in cash.

Rental Deposit Schemes

It is not uncommon to hear of unscrupulous landlords attempting to pocket the deposit at the end of the tenancy citing all sorts of excuses as to why it can’t be returned.

Like the UK and other countries, landlords and agencies must register the deposit with an admin institution within the relevant Autonomous Community so that it can be protected. This is detailed in Spain’s Tenancy Act (Ley de Arrendamientos Urbanos or LAU) under article 36.1.

This is a legal requirement for landlords in Spain, unfortunately, the vast majority are either unaware of this requirement or choose to ignore it completely.

Once the tenancy has elapsed, the deposit can then be requested and returned subject to any damage and losses, which the landlord will need to provide proof of.

If the deposit is not returned by the administration within one month of the tenancy finishing, it will accrue legal interest that must be returned to the tenant.

Find out more about securing your rental deposit from a landlord.

You can read further information on Spain’s rental deposit scheme including the administration for several Autonomous Communities here https://www.idealista.com/en/news/property-rent-spain/2019/05/16/6722-rental-deposit-scheme-how-get-your-deposit-back

Your Rights as a Sitting Tenant

Once you have moved into your new property, you have the right to reside there peacefully, without being disturbed by the landlord.

Furthermore, the landlord must ensure that the property is habitable and will remain so for the duration of the tenancy.

You will have the right to make improvements to the property such as putting up shelves, painting, and adding new fixtures and fittings, however, in most cases, this will require the written consent of the landlord before any modifications.

If the tenant makes any modifications during the tenancy that have not been approved in writing by the landlord, at the conclusion of the tenancy the landlord can request that the tenant return things to their previous state.

If the tenant has made changes that have decreased the stability and security of the property, the landlord can request immediate replacement to their previous state.

Under changes to the rental laws in March 2019 which were designed to protect tenants, an owner may not sell a property while the tenant is living in it. This means that regardless of whether it has been sold or not, the buyer cannot legally make you leave the property until the whole duration of the tenancy has been completed.

Another right you have as a tenant is that the landlord may not enter the premises at short notice under any circumstances. The tenant must agree to this in writing. If the landlord enters the property without the tenant's written permission, they can be criminally prosecuted.

Tenants with Disabilities

Where a tenant has a disability or is over 70 years of age, they may perform work within the property for themselves, their partner, or another member of the family living at the property, to assist in their use and accessibility to the property.

At the end of the tenancy, the landlord may request that the property be returned to its previous state.

Your Obligations as a Tenant

As a tenant, there are several things you must adhere to when renting a property in Spain.

For example, the tenant is obliged to assist the landlord where possible if work or improvements to the property need to be made and the changes are not possible at the end of the tenancy.

In such cases, the landlord must inform the tenant in writing at least three months before any work, notifying the tenant as to the nature of the work, duration, and any costs involved.

However, if the tenant does not agree with the decision to carry out the improvements, they have one month from the time of being notified to withdraw from the contract.

Furthermore, if work has to be carried out, the tenant has the right to claim a reduction in the rent in proportion to the area of the property that they are not able to use. They may also claim compensation for any expenses that are incurred as a direct result of any work.

If you would like to find out more about your rights when renting a property in Spain you can read the current version of the law here https://www.boe.es/buscar/act.php?id=BOE-A-1994-26003&tn=1&p=20190305

You can also read more about the changes that were made in March 2019 here https://www.healthplanspain.com/blog/spain-news/658-spain-to-introduce-new-rental-laws-to-protect-tenants.html