In these times of health, labor and economic uncertainty, it is more than ever a real challenge for owners to rent a property trying to guarantee as much as possible the security of such transaction. However, the necessary expenses and care involved in keeping a property unoccupied are substantial and renting it out may be the best solution.

We are going to give you some legal advice that every individual landlord should keep in mind regarding lease terms and how to communicate with the tenant to terminate the lease.

 

1.- Legal Framework

If a property is to be rented for use as a permanent residence, it should be known that the applicable legislation is Spanish Law 29/1994, of November 24, 1994, on Urban Leases.

The parties may reach different agreements that are not included in the Law, nevertheless it must be taken into consideration that including agreements that are not clear or that are contrary to the rules, will only favour the most vulnerable party in many cases, if they may harm the party that would otherwise not have included them, and/or therefore they will be considered as not having been included.

 

2.- Duration of contract

The duration of leases signed as from March 6, 2019 may be freely agreed by the parties. However, in the event that the agreed duration is less than five years, on the day of expiration the contract will be mandatorily extended by annual instalments until it reaches a minimum duration of five years.

In other words, regardless of the agreed term, the tenant may remain in the property if she/he so wishes for a minimum period of 5 years, unless she/he informs the lessor, at least 30 days prior to the date of termination of the lease or any of the extensions, of her/his wish not to renew it.

In addition, after at least these 5 years have elapsed, if the landlord does not request the tenant to surrender the dwelling with a minimum of four months‘ notice before the end of the 5 years, the tenant may remain in the dwelling for a further 3 years.

It is advisable to expressly agree in the lease contracts the duration of the lease, as well as the way in which communications between the parties must be carried out.

 

3.- Communications between the parties

There is freedom between the parties to agree on how to communicate between tenant and landlord. Article 1,255 of the Civil Code is applicable, according to which “the contracting parties may establish the covenants, clauses and conditions that they deem convenient, provided that they are not contrary to the laws, morality or public order”.

 Therefore, these may be verbal or in writing, including the use of electronic mail. In this regard, Article 4.6 of the Law states that “The parties may indicate an electronic address for the purpose of making the notifications provided for in this law, provided that the authenticity of the communication and its content is guaranteed and there is a reliable record of the complete sending and receiving and of the time at which they were made”.

Likewise, they may be carried out through instant messaging systems. In the latter case, recent jurisprudence has also accepted that they may be used as long as these aspects are equally guaranteed:

    • That the content of the message is authentic, clear and complete.
    • It must be possible to prove who is the owner of the telephone from which the message is sent, as well as who is the author of the message.
    • It must be possible to prove who is the owner of the receiving telephone.
    • That there is a reliable record of the time at which the message was sent and the time at which it was received.

However, given the complexity and novelty of this type of evaluations, which on many occasions will require expert evidence in the event of having to assert them before a court, it is advisable that certain types of significant communications, such as the termination of the lease, continue to be made by means of burofax (which certify not only the date of sending, but also the content thereof), which provide greater legal security in the event of possible discrepancies between the lessor and the lessee.

And all the above, always bearing in mind that before formalizing any type of contract, or trying to modify or terminate it, it is best to go to a professional beforehand so that she/he can properly advise you on your specific case and not suffer any inconvenience. If you have any doubts or queries in this regard, we are at your disposal to help you in everything you need at VENTURA GARCÉS.