Rentals for a period of less than one year, advance payments for quarters or semesters, indemnities taken out of the sleeve and disproportionate increases in rents. They are a sample of the requirements that some owners incorporate in their contracts to shorten the duration of the rental and evict their tenant before the five-year period established by the Urban Leasing Law (seven if the renter is a company).
Many tenants are not aware that the contract they are going to sign, or have already signed, is full of points that are possibly not legal. According to the internal data they handle in the Méndez Lit law firm, 69% of the tenants are unaware of the clauses they sign when renting their home. Others are aware, but despite the abuse they consent to the hassle of going to court.
“Normally it is the owner who draws up the lease and imposes the conditions of use of the house and the future tenant has no other option but to accept them if he wants to live in the house,” remarks Fátima Galisteo, a lawyer at the Galisteo Abogados law firm. Although the tenant must know that, if the conditions are abusive and, therefore, contrary to the LAU, they are void.
The most bleeding clause, the one that a large number of tenants are now suffering from, is the 11-month contract. With the pandemic, many tourist flats switched to traditional rental to compensate for the sharp drop in income. In 2020, real estate portals were filled with ads offering rentals of less than a year. Now many of these flats are trying to get hooked on tourist rental again.
The point is that the owner will not be able to do so if he is not able to justify the temporary nature of the rental —for vacations, work, studies—, and if the tenant can demonstrate that he has no other place to normally reside.
Many owners are confused when thinking that the important thing to avoid the forced extension is the duration of the contract. The key here is the cause and the purpose of the occupation of the house. “If the rent is due to a temporary need, even if it is longer than one year and, as is clearly specified in the contract, it will end when the term is set; but if you rent for permanent and habitual residence, whatever its duration, it is subject to the provisions of the LAU ”, Galisteo points out.
The Organization of Consumers and Users (OCU) insists that signing a rental contract for a home for a period of 11 months does not automatically mean that the rental is seasonal. “It can be a rent with all of the law and give the tenant the right to stay in the house for up to five years,” says Eztizen Gregorio, spokesman for the OCU.
Arrived in this situation, if the tenant does not want to leave the house and the owner files an eviction claim, “it is very possible that the judge determines that this contract is fraudulent, that is, that it should be considered as a habitual residence contract” , believes Eduardo Fernández-Fígares, head of Lawyers For All.
Each affected person will have to decide if it is worth fighting for that house or not. “There are many tenants who prefer to compromise in certain unfair situations, rather than wasting time and money in a procedure with an uncertain end,” they acknowledge in the OCU.
In this list of outrages and contracts at the whim of some landlords, the disproportionate rent reviews that apply to suffocate the tenant and recover their home cannot be missed. It is usual to see contracts where increases are established well above the annual CPI. Salvador Salcedo, lawyer and partner of the Ático Jurídico law firm, is emphatic: “Any update agreed for an amount greater than that is null and void.”
What if the CPI goes down? “We must pay special attention not to impose limiting clauses (land) on its application, which would prevent the tenant from benefiting from its application,” says José Méndez, managing partner of the Méndez Lit.
From the OCU they also denounce that some owners, especially companies, require the tenant to take charge of the community expenses or the IBI from the second or third year. “It is a way to raise the rent and encourage tenants to leave the house at that time.”
There are more clauses that the owners include without any legal support, such as one year of compulsory fulfillment of the contract to guarantee the collection of, at least, 12 months. But, “the LAU, in its article 11, allows the tenant to withdraw after the sixth month,” explains Fernández-Fígares. And there is no penalty, unless otherwise agreed in the contract. In that case, “it may not exceed one monthly payment for each contract annuity that remains to be fulfilled,” adds Salcedo.
What if the tenant stops paying? It is the question that landlords repeat themselves over and over again, and that leads them to ask for several months of bail, guarantees or deposits. However, the law is very clear. The owner can only demand one month deposit. And additionally, another two months of guarantees. Anything in excess of this is not legal. Despite this, “there are still contracts that require a two-month deposit because the house is furnished,” confirms Méndez.
In some contracts there are clauses that require you to pay the rent in advance (they usually ask for three or six months, but there are cases of up to a year). “This practice is illegal and tenants are not obliged to pay their rents in advance, unless it is on a monthly basis,” they state in the Rental Negotiating Agency.
Not a few landlords demand that the tenant pay the IBI receipt, the garbage rate, the community of owners’ fees, the damage insurance and all the necessary repairs to keep the house in good condition. The tenant must know that the repairs necessary to keep the house in livable conditions must be paid for by the owner. “The judge would rule in favor of the tenant,” says Fernández-Fígares. Of course, the tenant must assume the small repairs for the ordinary use of the house, such as locks, blinds and awnings, taps and cisterns.
Although the contract states that in case of non-compliance, the tenant will bear the expenses of the lawyer and attorney, ignore it. “This is only decided by a judge if he convicts the costs of the trial,” says José Méndez.
One last question. The tenant rarely checks whether the landlord is entitled to rent the apartment in which he intends to live, something that generates not a few conflicts. “It is advisable that you require the landlord to prove ownership, in the same way that the tenant is asked to prove his solvency, or to request a simple note of the property from the property registry,” says Ático Jurídico’s lawyer. It is not strange that the ownership of a property falls on several people who have inherited it or that the landlord has died and was not the owner, but the usufructuary.