Renting Your Property - The Legal Aspects Part 1

Published on 27/08/2007 in Renting Your Property

Elements of the rental contract

The property rental contract is a written agreement which basically needs to contain:
 

  • Identity data of both landlord and tenant
  • Description of the property
  • Renting time period
  • Permanent or temporary use of the house
  • Any other pertinent clauses

There is no legal prescription of any particular format or sort of document: any kind of written document (even on a paper napkin!!) is valid as the mutual agreement of the parties is enough as the “cause" of the renting rights. There is an official form contract which is sold (funny for you British: at any tobacconists! in Spain). The  rental contract can also be done before a Notary Public (on a public deed) in order to have it registered in  the Land Registry, this way your tenant/landlord position can be opposed against third parties. Not very frequent though. The most common way is to write an ordinary private document on plain paper.

Contract period

The contract period can be freely established by the parties.

Legal pictureBut, OJO!! There are very important differences in the rules about contract period depending on the temporary or permanent use of the house.  Be careful because having an imposed  tenant in your house obligatorily for 5,8 years depends on that, or… if you are a tenant and want to stay that long, the permanent use of the house needs to be  reflected in order to avoid being evicted beforehand.

I explain:

There are rules of automatic contract extensions which are applicable when you rent a house as permanent dwelling. These automatic extensions of the Urban Renting Act (URA) are not applicable to temporary lettings. This kind of temporary lettings are not under the URA but subject to the will of the parties which has been freely stated in the contract and, subsidiarily to the Civil Code and its imperative rules and there is no automatic extensions here.

Permanent:  Automatic extensions for 5 years-3 years.

Temporary: NO automatic extensions.

The exclusion of this kind of contracts from the URA is because this contract does not protect the tenant rights to a permanent  residence, but is referred to the house rented by someone who already has a permanent residence house (  a reality which requires more legal protection)  and just makes this contract for  leisure or vacation necessities.   

Reiterated Court Decisions state that we are before this kind of lettings if the house is rented for vacations, weekends, feast days… and with no pretension of covering the need of a permanent residence of the tenant. Therefore, the temporary character of the use is the key to differentiate one from another.

This is applicable even if the rental period is longer than the common vacation period, even if it is hired for one or more years.  The most important note is that the occupation of the house is temporary.

It is highly advisable to expressly specify in the contract that the renting is “temporary” or “for not permanent residency use” in order to avoid the application of the extensions regime of the URA. 


 

Written by: Maria de Castro

About the author:

Maria de Castro is a Spanish Lawyer and the Director of the Law Firm www.costaluzlawyers.es.

Costa Luz Lawyers are contract and consumer real estate law specialists covering all parts of Spain. You can contact Maria at mldecastro@costaluzlawyers.es




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Comments:

Olivas said:
21 January 2012 @ 11:27

I have a question. If I'm renting my property in Spain to a British person currently living in the UK, can the tenancy agreement be governed by UK law??


walkingshots said:
11 September 2007 @ 08:55

Just thinking aloud - Maybe the answer is to look for UK residents who wish to spend the winter months abroad.



walkingshots said:
11 September 2007 @ 08:53

I was very disturbed to read this as only yesterday I was having a conversation with an agent regarding letting a new build apartment which I complete on later this month. He assured me that if you stipulated that the let was for a maximum of 11 months there was no problem - including i assumed letting to a tenant who does not have a permanent abode elsewhere. In fact someone could have a permanent home elsewhere and then rwelinquish it then seeking to establish residency in your apartment. What a nightmare! Oh for the tenancy agreements in UK.



normansands said:
06 September 2007 @ 21:58

What of the commonly held view that you can let to a tenant who does not have a permanent abode elsewhere for a maximum of 11 months?

Also that you can relet to the same tenant for a further period as long as you ensure that there is a 24 hour break in the tenancy?


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