Last May 26 saw the entry into force of Spanish Act 12 of May 24 2023, on the right to housing, except for the section referring to changes to Personal Income Tax incentives for the landlord, which will come into force on January 1, 2024.

The main changes introduced by this Act, known as the “Housing Act”, are as follows:

 

Residential leases

  • Stretched residential market areas: Autonomous Communities may declare “stretched residential market areas”, these being defined as areas where there is a special risk of insufficient affordable housing for the resident population, due to the occurrence of one of the following circumstances:
    •  The average burden of the cost of the mortgage or rent on the personal or household budget, plus basic expenses and supplies, exceeds 30% of the average income or average household income.
    • During the 5 years prior to declaration as a stretched residential market area, the purchase or rental price of the property has experienced cumulative growth that is at least 3 percentage points higher than the percentage by which the consumer price index in the autonomous community in question has grown.

This declaration of a stretched market area has implications for the landlord: rent caps and mandatory lease extensions, as discussed below.

  • Large property owner: For the purposes of the provisions of the Housing Act, a large property owner is understood to be an individual or legal entity that owns more than 10 urban properties for residential use or a built surface area of more than 1,500 m2 for residential use, excluding garages and storage rooms in all cases. This definition may be individually defined in the declaration of stretched residential market areas to apply to holders of 5 or more urban properties for residential use located in the said area, when this is argued by the Autonomous Community in the corresponding justifying report.
  • Extension of contracts in stretched residential market areas: In rentals involving a primary residence in which the property is located in a stretched residential market zone, if the initial mandatory extension period of 5 years (or 7 years if the landlord is a legal entity) or the subsequent tacit extension period of up to 3 years ends while the declaration of such a zone remains in force, the lease may be extraordinarily extended (if the tenant requests this) for additional periods of one year, up to a maximum of 3 years, during which the terms and conditions established for the current lease will continue to apply. This request for an extraordinary extension must be accepted by the landlord, unless other terms and conditions have been established by agreement between the parties, or a new lease contract has been signed with the applicable limits on the rent, or the landlord has given notice, within the time and pursuant to the conditions required in law, of the need to occupy the leased dwelling to use it as a permanent dwelling for him/herself or his/her relatives to the first degree of kinship or adoption, or for his/her spouse in the event of a final judgment of separation, divorce or marriage annulment.
  • One-year extension for large tenants: In locations not declared as stretched residential market areas, the tenant may request an extraordinary lease extension of a maximum of 1 year, provided that the tenant provides evidence that they are in a situation of social and economic vulnerability. This extension must be accepted by the landlord when the landlord is a large housing tenant, unless a new lease contract has been signed by the parties.
  • Limits to the rent on housing leases: These limits affect housing leases in areas with a stretched residential market. The rent agreed at the beginning of the new contract may not exceed the final rent paid under the primary dwelling lease contract that had been in force in the last 5 years for the same dwelling, once the annual rent review clause under the previous contract has been applied, and no new conditions may be imposed that would pass on quotas or expenses that were not included in the previous contract to the tenant. An additional maximum increase of 10% is only allowed in the following exceptional cases:
    • When the dwelling has been the object of a rehabilitation project that has been completed in the 2 years prior to the date of the new lease contract.
    • When during the 2 years prior to the date on which the new contract is signed, rehabilitation or improvement actions have been completed on the dwelling in which a saving of 30% on non-renewable primary energy has been proved.
    • When during the 2 years prior to the date on which the new contract is signed, work has been completed to improve accessibility.
    • When the new lease contract is signed for a period of 10 or more years, or when a right of extension is established that the tenant may voluntarily exercise and that allows the tenant to extend the contract under the same terms and conditions for a period of 10 or more years.

When the landlord is a large property owner and the property is located in a stretched residential market area, the rent agreed upon at the beginning of the new contract may not exceed the maximum amount that applies according to the reference price index system, based on the conditions and characteristics of the leased property and the building in which it is located.

The latter limit applies to contracts entered into on or after 26 May 2023, once the aforementioned reference price index system has been approved.

  • Real estate management and contract formalization expenses: The landlord shall be responsible for any real estate management expenses (agency fees), provided that it is the landlord that has engaged the real estate agency to handle the rental, as well as for any potential expenses incurred when formalising the contract.

 

Tax incentives applicable to Personal Income Tax

As from 1 January 2024, and with effect for housing lease contracts entered into following the entry into force of the Housing Act (26 May 2023), a residential housing landlord may apply the following reductions to the net positive yield obtained:

  • 90% reduction when the same landlord enters into a new lease contract for a dwelling located in a stretched market area, in which the initial rent has been reduced by more than 5% in relation to the final rent payable under the previous lease contract for the same dwelling, once the annual rent review clause under the previous contract has been applied, if applicable.
  • 70% reduction when, though the requirements indicated in section (i) above have not been met, any of the following circumstances occur:
    • The taxpayer has rented out the property for the first time, provided that the property is located in a stretched residential market area and the tenant is between 18 and 35 years of age.
    • When the tenant is a Public Administration or non-profit entity that has allocated the dwelling for social housing with a monthly rent that is lower than the amount established in the rental aid programme under the state housing plan, or when the dwelling is allocated for the housing of persons in a situation of economic vulnerability, or when the dwelling is included under a public housing program or category for which the competent Administration establishes a limit on the rental amount that may be charged.
  • 60% reduction when, though the requirements indicated in sections (i) and (ii) above have not been met, the dwelling has been the object of a rehabilitation project completed during the 2 years prior to the date on which the lease contract is signed.
  • 50% reduction, in all other cases.

As indicated above, these tax incentives will come into effect on 1 January 2024 with effect for residential lease contracts entered into from 26 May 2023, so landlords of residential properties will be able to apply them in the 2024 income tax returns that they file with the Tax Authority in 2025.

Finally, with regard to housing lease contracts entered into prior to 26 May 2023, the 60% reduction provided for in paragraph 2 of Article 23 of the Personal Income Tax Law in its current wording as of 31 December 2021 will continue to apply.

 

Real Estate Tax Surcharges for unoccupied homes

Municipal authorities may require a surcharge of up to 50% on the net Real Estate Tax payable on residential properties that are permanently unoccupied. A property is classified as permanently unoccupied in the event that it remains unoccupied, continuously and without justifiable cause, for a period of more than 2 years, when it belongs to the owner of 4 or more residential properties.

The surcharge may be up to 100% of the Real Estate Tax payable when the property is unoccupied for longer than 3 years, and this amount may be adjusted according to the length of time it remains unoccupied.

In addition, municipal authorities may increase the percentage of surcharge payable in the above cases by up to 50 additional percentage points for properties belonging to owners of 2 or more residential properties that are unoccupied in the same municipality.

Property that is not occupied for any of the following reasons shall not be considered unoccupied:

  • Temporary relocation for work or training reasons.
  • A change of address due to a situation of dependency or for health-related or social emergency reasons.
  • Properties destined for use as second homes, up to a maximum of 4 years of continuous non-occupancy.
  • Properties subject to construction or rehabilitation works, or other circumstances that make their effective occupation impossible.
  • Properties that are the subject of a lawsuit or case pending judicial or administrative resolution that prevents the use and disposal of the property.
  • Properties whose owners offer them for sale, under market conditions, and they remain unoccupied up to a maximum of 1 year, or when they are offered for rent, up to a maximum of 6 months.

The surcharge will accrue on 31 December and will be charged annually by the municipal authorities, once the vacancy of the property has been verified. A municipal declaration as a permanently unoccupied property will require the prior hearing of the taxpayer and evidence from the City Council that the property is unoccupied.