When renting a home in Spain, it is common for tenants to obtain a generic model leasing contract, downloaded from the Internet or provided by someone the landlord knows. However, it’s important that this document be adapted to the needs of each individual to ensure that it doesn’t contain unfair, and therefore null and void, terms.
The Spanish law firm deSalvador Real Estate Lawyers reminds us that clauses that limit the tenant's rights under the Urban Leasing Law (Ley de Arrendamientos Urbanos or LAU) are void. Be careful, though, because not all the clauses that can harm the tenant are null and void – only those that restrict the tenant's rights protected by the law.
The most common invalid clauses in Spanish rental contracts are as follows:
1. False seasonal leases
Some landlords prefer to sign for 11-month rental terms and avoid the full year, thus making the contract seasonal so that the LAU does not apply. They do this so that the tenant doesn’t have the right to stay in the dwelling for up to 3 years. deSalvador reminds that, even so, for a rental to be considered seasonal, there must be a reason that justifies the temporary nature of the rental, such as work, a temporary transfer, studies, etc., as well as a permanent address for the tenant other than the apartment they rent.
2. Refusal of legal extension of the contract
Another clause usually included by landlords is that the contract can only last one year without the possibility of a legal extension of up to three years. This is contrary to Article 9.1 of the LAU, which provides for a three-year extension as a legal right for the tenant, but as an obligation for the landlord.
3. Penalisation if the tenant does not stay for a whole year
Another unfair and abusive term in many long-term rental contracts is to establish that it is mandatory for the tenant to pay for the entire first year, and in case of non-compliance the landlord will set a penalty. However, this is illegal as Article 11 of the LAU states that the tenant has the right to terminate the lease after the first six months and the penalty, if any, will be limited to the one established by law.
4. Paying the rent in advance
The LAU does not allow advance payment of more than one month's rent. The deSalvador law firm emphasises that the landlord cannot contractually oblige the tenant to pay 2 or 3 months' rent in advance, and that they cannot evict the tenant for failure to do so.
5. Not fulfilling the duty to maintain the property
The landlord is obliged to carry out the necessary maintenance works to preserve the property as established in article 21.1 of the LAU. However, deSalvador points out that the interpretation of the clauses about such work are very delicate, so it’s best to have a lawyer draw up the contract properly.
6. The landlord accessing the property
The final most common unfair term in lease agreements is to state that the landlord can visit the house at any time to check on the condition. However, this clause is void because it goes against the inviolability of the home established in article 18.2 of the Spanish Constitution. With this overriding law, the tenant can refuse to let the landlord into the house.
What happens if the rental contract contains unfair terms?
You may now be asking yourself, “What should I do if my contract is abusive?”. Only a judge can legally rule on whether a clause is invalid, so if the contract contains provisions abusive to the tenant’s rights, it is advisable to take legal action. It is best to leave the drafting of the contract in the hands of a lawyer to avoid abusive situations on the part of the landlord. In the event that a clause harmful to the tenant has been included, it does not invalidate the entire rental agreement, but only the regulations that may be considered void by the courts.
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