Top 10 unfair terms on rentals in Spain
1. REQUIRING THE TENANT TO SPEND A YEAR IN THE PROPERTY
or what is the same, preventing the tenant from cancelling the lease within six months of that period. The LAU reform that was established in 2013, in which the lessee is entitled to terminate the contract after the first six months of the signing of the document. The penalty for this cessation is set by the same law. But the penalty for operating, must be collected and written in the contract, failure to do so, means that the landlord is not entitled to any compensation.
2. PREVENTING THE TENANT TO EXTEND THE RENTAL PERIOD
The LAU (“Ley de Arrendamientos Urbanos”, i.e. The Law of Urban Rents) says that “the duration of the lease shall be freely agreed by the parties. If this is less than three years, when the expiration date of the contract arrives, it is extended by annual installments until the lease reaches a minimum duration of three years, unless the lessee informs the lessor, at least 30 days before the date of termination of the contract or any extensions, their desire to not renew “. In other words, the extension is compulsory for the lessor (owner) and voluntary for the lessee (tenant). There is only one exception to this mandatory extension if, once after the first year, the landlord tells his tenant that he needs the property.
3. A TERM THAT ALLOWS THE LANDLORD TO ENTER THE PROPERTY
whenever he wants. This is totally illegal. The Spanish Constitution recognizes the inviolability of the home and Article 18 states that the property can only be accessed with the consent of the holder of the contract or a court order. In particular, Article 18.2 of the Spanish Constitution states: “The home is inviolable. No entry or search may be made without the consent of the owner or court order, except in cases of flagrante delicto”.
4. NO DEPOSIT IS RETURNED
The deposit is a warranty given to the landlord upon signing the rental agreement and its purpose is to ensure compliance by the lessee, of the obligations under the contract. This is an obligation that is provided for in Article 36 of Law 29/194 of 24 November Tenancies. “The landlord or landlady must refund the full amount of the deposit if there are no outstanding obligations to cover the same, at the time of termination of the lease, it can not be withheld without good cause, cleaning or painting the property are not included, since such damage is due to normal use by the lessee “.
5. FORCING THE TENANT TO TAKE RESPONSIBILITY AND CARE OF ALL REPAIRS IN THE HOUSE
From Expat Agency, we must remind you that the LAU specifies in terms of home repairs that the tenant has to take care of the damages caused by misuse and routine maintenance of the house, while the owner has to take responsibility for the arrangements necessary for maintaining the dwelling in good condition and that are caused by the pass of time and habitual use. Therefore, in no case can it be specified in a clause that the tenant is responsible for all the arrangements of fixing damages or failures of machinery.
6. TAKING AWAY THE TENANT’S FIRST REFUSAL AND PRE-EMPTIVE RIGHTS
If the owner does not indicate in the contract that the tenant waives its right of pre-emption in a specific clause, when the day comes that he decides to sell the property, he can not do it without notifying the tenant and giving him the chance to become the buyer.
7. REQUIRING THE PAYMENT IN ADVANCE OF MORE THAN ONE MONTH’S RENT
“In accordance with the provisions of Article 17.2 of the LAU, in no case may the landlord demand an advance payment of more than one month’s rent,” says Javier Rodríguez, head of the Expat Agency legal departament.
8. ANNUAL UPDATE OF THE RENT
As explained by Javier, “it can be done only once after the first three years of contract”. During the first three years, the deposit will not be subject to updating. “However, each time the lease is extended, the landlord may require to increase the rent, or the tenant to lower it, until it is equal to one or two months of the current rent, as appropriate, at the time of the extension.”
9. COURT EXPENSES
It is usual that some documents grant the obligation of paying the legal costs to the tenant, but this section is invalid. “The legal costs under the contract shall be borne and paid by the tenant,” explains one of the contracts provided by a tenant to be used in this article. “This is NOT valid” says Loscertales. “The costs are imposed by the judge under the law of civil procedure and the interested parties can not agree on anything,” he adds.
10. ASKING THE TENANTS TO PAY THE AGENT COMMISSIONS
From Expat Agency we are exhausted of warning expatriates about this ilegal term from owners and real estate agencies. The latest Civil Code establishes that the owner (who decides to hire an mediator to rent his property) should be the responsible for paying the fees.
Another thing is when the tenants ask an agent to find a property for them. In fact, that’s one of the things we do at Expat Agency. We work exclusively for expatriates by looking for a property for them, and helping them before, during and after the rental process. But we have no agreement with any owner, landlord or real estate agency unless they do not ask for any commission.
Why should I pay a commission to an agent just for advertising a property when I did not decide to hire a Real Estate Agency?
If you ask an agent to find you a property to rent, paying a commission could be fair. But, in our opinion, paying a commission just because you found a property announced by an agent, it is illegal and dishonest, since owners are who really chose an agency to announce and show their properties, so they should pay the commission.
As an agency that only works for expatriates, we have discovered several cases in which real estate agents ask a commission from both owner and tentants.
Definately, that is the most unfair term on rentals in Spain for us.