In Spain, a general distinction is made between residential tenancies and non-residential tenancies, with only residential tenancies benefiting from the specific protection provided by residential tenancy law. If a property is rented for the purpose of carrying out a commercial activity or for temporary or seasonal accommodation, it is not considered a residential tenancy and is primarily governed by the terms agreed between the parties.

It is important that the reason for classifying the tenancy as non-residential is expressly stated in the rental agreement (holidays, studies, etc.). If the agreement is merely concluded for a period of less than one year without specifying the reason for its temporary nature, it may still be regarded as a residential tenancy and therefore be subject to the protection of residential tenancy law. In the case of residential tenancies, contractual clauses that place the tenant at a disadvantage contrary to mandatory statutory provisions may be void and deemed not to have been agreed. The applicable mandatory provisions may also extend to furniture, parking spaces, garages or other items rented together with the property. In the case of non-residential tenancies, however, the parties generally have greater contractual freedom to determine the terms of the tenancy.

Rent and payment

The amount of rent may, in principle, be freely agreed between the parties. Unless otherwise stipulated in the agreement, the rent is payable monthly within the first 7 days to the landlord. If payment is not made by bank transfer but is instead paid to the landlord in cash, the landlord must provide the tenant with a receipt. During the term of the agreement, rent increases may generally only take place after each full year of the tenancy and only if expressly provided for in the agreement. After the first 3 years of the tenancy, it may also be possible to increase the rent as a result of improvements or necessary works carried out on the rented property.

Duration of the tenancy and automatic renewal of the agreement

In principle, the duration of the tenancy agreement may be freely determined by the parties. In order to protect the interests of the tenant, Spanish residential tenancy law provides for minimum tenancy periods and automatic extensions where the agreed contractual term is shorter than the statutory minimum period.

For example, if a residential tenancy agreement is concluded for a period of one year, it may be automatically renewed annually until the applicable statutory minimum tenancy period is reached. To prevent an automatic renewal, the tenant must notify the landlord of their intention to terminate the agreement within the legally applicable notice period and in a manner that provides evidence of such notification.

The landlord may recover the property in certain circumstances provided for by law if the property is required as a permanent residence for the landlord or certain members of their immediate family. In such cases, the applicable statutory requirements and notice periods must be observed. If the tenant is required to leave the property for this reason and the landlord or their family subsequently fails to occupy it within the period prescribed by law, the tenant may have certain rights against the landlord.

If no specific duration is stated in the tenancy agreement, the statutory rules governing the duration and renewal of the tenancy will apply.

Termination before the end of the agreed tenancy period

After the first 6 months of the tenancy, the tenant may terminate the agreement even if a term of several years was originally agreed. The applicable notice period must be observed, as well as any compensation for early termination that has been validly agreed in the tenancy agreement. Where compensation for early termination has been agreed, it must be calculated within the limits established by the applicable legislation.

For example, where compensation for early termination has been contractually agreed, the amount must be calculated by reference to the monthly rent and the remaining contractual period, subject to the applicable statutory limits.

Electricity, water, taxes, community fees and other expenses

Maintenance costs, certain community fees, taxes and other expenses relating to the ownership of the property are generally payable by the landlord, unless the law permits these costs to be passed on to the tenant and this has been expressly agreed in the tenancy agreement. In practice, certain taxes and community fees (comunidad) are often included in the rent and are not charged directly to the tenant.

Electricity, water, gas, telephone and other individually metered utility costs arising directly from the tenant's consumption are generally payable by the tenant.

 

Security deposit and additional guarantees

When a residential tenancy agreement is concluded, a statutory security deposit must be provided. For residential tenancies, this generally corresponds to one month's rent. Once the tenancy has ended and the keys have been returned, the deposit must be repaid in accordance with the applicable statutory deadlines, subject to any amounts that may legitimately be deducted. The parties may also agree on additional guarantees within the limits established by the applicable legislation.

Assignment of the tenancy agreement and subletting

The tenant may only assign the tenancy agreement to a third party with the landlord's express written consent. The landlord's prior written consent is also generally required in order to sublet part of the property. When the principal tenancy agreement ends, any sublease linked to it will also terminate.

Repairs and maintenance

Furniture, washing machine, water heater, refrigerator and television

Many properties in Spain are rented fully or partially furnished, and household appliances such as washing machines and refrigerators are often included as part of the property. Under Spanish residential tenancy law, the landlord is generally responsible for carrying out or paying for repairs that are necessary to maintain the property in a suitable and habitable condition, unless the damage is attributable to the tenant.

If the items are used with appropriate care and any damage or deterioration results solely from normal use, the landlord will generally be responsible for the necessary repair or replacement where this is required to maintain the agreed condition of the rented property.

However, where damage is caused by the tenant's culpable or negligent conduct, the tenant will be responsible for the corresponding repair costs. The tenant must also notify the landlord without delay of any significant malfunction or damage affecting the property, its installations or appliances.

Water pipes, taps, painting, etc.

The same principle applies in this respect: damage caused intentionally or negligently by the tenant must be paid for by the tenant. Where the issue results from normal wear and tear or involves repairs necessary to maintain the property in a habitable condition, responsibility will generally lie with the landlord.

Minor repairs

Minor repairs resulting from ordinary wear and tear caused by the tenant's normal use of the property are generally the tenant's responsibility. This may include minor maintenance tasks and the replacement of everyday items such as light bulbs.

Sale of the property and its effect on the tenancy

The sale of a rented property may have different consequences for the tenancy agreement depending on the specific circumstances, the statutory or agreed duration of the tenancy and, in certain cases, whether the tenancy has been registered with the Land Registry. Both purchasers and tenants should therefore verify the legal status of the tenancy agreement before the sale is completed.

Our law firm will be pleased to assist you in analysing your individual situation, carrying out any necessary administrative procedures and advising you on tenancy agreements and other related legal matters. If you are interested or have any specific questions regarding this matter, please feel free to contact us by email or telephone.

Author: 

Christoph Sander
Lawyer and Tax Advisor
CEO, Partner, Director
info@sspartners.es
Tel: (+34) 951 12 13 06
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