Top 10 mistakes on renting in Spain

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Gtres

Tenant’s top five

  1. A verbal contract is better than a written one. No, not really. Although verbal contracts in Spain are equally valid to written ones, the problem lies when there is a disagreement. It is very difficult to prove what was actually agreed in a verbal contract i.e. landlord pays for the utilities. It is in the best interests of both tenant and landlord that rental agreements are always put in writing. Tenants have the right to demand a verbal contract is put in writing by their landlord.
  2. Offsetting the security deposit against any unpaid rental. This is unlawful. The security deposit serves its own legal purpose and at no time can be used to compensate rental shortfalls.
  3. I can always leave the property giving 30 days’ notice. Yes and no. Yes, but depending on the agreed penalties, you may be held liable to pay a penalty for leaving ahead of time. If you leave before the first six months are up, you owe the landlord the full six months by law.
  4. Deducting damages from the rent. You simply can’t do this.
  5. The property is being sold and I’m being asked to leave. Actually, following new laws from 2019, you don’t have to. Long term tenants are protected by law and may not be removed from a property even if sold on. However, a tenant is free to reach an agreement with the buyer (or landlord) to leave ahead in exchange of a suitable ‘compensation.’

Landlord’s top five

  1. Shutting off the utilities. Landlords often feel the impulse to do this on their tenant slipping into arrears or becoming a non-paying tenant. You should know that your tenant can report you to the police. Doing this may be labelled as either coercion or harassment, or both. Your tenant can prosecute you criminally on doing this and you may find yourself being remanded in custody. So, maybe you ought to think twice before walking down this path. Even if the utilities are under a landlord’s name and he discontinues them, he can still be prosecuted, as it’s legally equated to a physical utility’s shutoff.
  2. Changing the locks. Same as above, it may be regarded as either coercion or harassment, or both. Your tenant may prosecute you criminally.
  3. Taking justice into your own hands. Landlords may feel tempted to take justice into their own hands and break-in their own property assisted by some square-jawed tattooed acquaintance as ‘backup.’ This is seldom a good idea and may land you and your ‘friends’ in a Spanish jail for unlawful entry (trespassing). The only – legal – way to evict a non-paying tenant is to hire a lawyer and initiate a formal tenant eviction procedure through the Spanish law courts.
  4. Entering the property under the guise of a ‘routine check’. Although it may be highly tempting to take a quick peak from time to time, especially after a noisy summer party that’s kept the whole neighbourhood up all night, it is seldom a bright idea. When a landlord lets a property, he loses possession. Access to the property can only be authorized by a tenant, in writing, regardless if they are up to date or not with the rental.
  5. Eleven-month contracts are short-term and watertight. I’m afraid not. This single blunder is responsible of many legal problems at a later date. What qualifies a rent as either short or long-term is not the fact that it is labelled one way or the other, or even by its duration. What really matters is if the tenant and his family are making use of the property as their permanent place of abode. If this is the case, it’s a long term contract subject to the protection of Spain’s Tenancy Act.

To close, luxury rentals waive the protection of Spain’s Tenancy Act as it does not apply to them; luxury rentals are ruled by the will of the parties.

At LNA we can represent you buying, selling or renting out your property in Spain. We have 17 years’ experience in conveyance & tax. Larraín Nesbitt Abogados, small on fees, big on service.

2020 © Raymundo Larraín Nesbitt. All Rights Reserved.

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