Antonio Flores’ Blog

Spain is not different when it comes to “legal urban myths”, statements that sound true but are legally wrong. Let’s see some of them:

1. Administrative residency and tax residency are the same: taking out your “residencia” at the Police Station does not make you a tax resident of Spain. To be one, you need to prima facie file tax returns in this country or you are exempt from doing so, prove continuous residency via electricity bills, “empadronamiento” certificates and so on.
2. Infidelity is a ground for divorce: as explained in the previous article, the only “ground” for divorce is to have been married for 3 months. End of.
3. Public nakedness is a criminal offence: unlike many other countries, walking around naked per is not a statutory offense unless it is proven there is a sexual connotation. However, if you expose yourself you will be subject to heavy fines: The Supreme Court ruled in 2015 that nudity cannot be condoned for it affects the peaceful daily coexistence.
4. 11 months is the limit for short term rentals: Never has a legal urban myth expanded so rapid and damagingly. There is no such thing as an 11-month contract that is different from say one with a 9 or 13-month term. In fact, the law in Spain states that any residential rental contract can be legally extended to 3 years by the tenant. Holiday lets do exist but they are not defined by the term, but by the use of the dwelling: sporadic, non- permanent, accidental, circumstantial are some of the words use by the Courts to differentiate short term from long term or permanent.
5. Red cars cost more to insure: many people will not know it but the car insurance industry is colour-blind.
6. Legal letters have to be replied to: it is often the case that parties to a legal dispute feel that one email or letter needs to be matched with a reply, thus causing endless threads of communications. From a tactical point of view too, giving out to much information to a would-be litigant can be counterproductive. To sum up, avoid the temptation of a courtesy reply unless these letters are coming from the Courts or from Government offices.

Antonio Flores Legal Practise divorce spain, Legal letters spain, rental spain, Tax Residency Spain

Regional and local press has extensively covered the enactment of the new rules governing rented accommodation. The rules, under the title Decreto 28/2016, de 2 de febrero, de las viviendas con fines turísticos y de modificación del Decreto 194/2010, de 20 de abril, de establecimientos de apartamentos turísticos, has failed to elaborate on two important aspects: what does compliance really entail and what are the fines for non-compliance?

1. In respect to compliance, the rules obliges owners to offer clients –among other requirements- the following: license of occupancy, rooms with adequate ventilation and darkening devices (shutters or similar), sufficient furniture and necessary appliances, touristic information whether in hard copy or electronic, of data for the area (bus schedules, close-by parking facilities, medical facilities in the vicinity and a plan of the town), complaint form, first aid kit, bed linen, cutlery and crockery adequate to the size and requirements of the property (and a replacement set for each). As if not enough, the law says owners will have to have a telephone number available to tenants where they can call to resolve any incidences, an instruction manual for kitchen appliances, details of the use of communal facilities and property equipment, as well as details on access of pets to the property and information on potential restriction for smokers and a few other requirements.But whilst some of the above are clear, the meaning of ambiguous words such as “adequate”, “sufficient” and “necessary” can widely differ depending on who you ask. Attending these grey areas is a pressing requirement.
2. The fine system is also not clear. The 2016 Act refers to a 2011 Rural Accommodation Act for elucidation of what fines are applicable. Some scaremongers have enjoyed spreading the belief that if you do not register, you will be fined up to 150,000 Euros. The reality is that failing to register their properties can “only” be fined between 2,000 and 18,000 Euros, the heavier monster fine of “up to 150k” being reserved for other contraventions i.e. unlawful discrimination or obstructing inspectors on duty.

Interestingly, the Act does not address the fines for failing to comply with one or more elements within the the long list on point a), for instance: missing spoons, dirty linen or insufficient first aid kit.

The experience in Catalunya and the Balearics regions, where similar rules apply, shows us that lack of registration is attracting the vast majority of fines, with little or no precedent in respect to the degree or correctness of compliance.

Antonio Flores Property Andalusia Rental Law, property rental spain, rental spain

According to most studies, death, divorce and changing homes are the three most stressful moments in a person’s life. In my opinion, however, renting property out should also be included, judging by the amount of queries, complaints and eviction legal instructions this office receives.

The email below was received from a client who had demanded payment of unpaid rentals on a townhouse and who was fobbed off, by his tenants, in a not very Queen’s English (they are vigorous East Londoners, in fact):

Hiya

As early emails we have NO Contract, you had time to come and see us when I told you of our intentions by email which you replied to,  you have the keys for the property from Monica, we have taken legal advice and been informed no contact has been signed no notary has been attended or no verbal agreement made with you,  as I said before we was all square financially.

The tenants had not paid and simply disappeared without any notice or warning, leaving the keys with the neighbour. The landlord was not expecting a with thanks bottle of champagne but neither breadcrumbs, eggshells, a stinky fridge, walls full of blue-tack and a filthy and defective gas barbecue (which nobody wants to touch), yet the fact that they were, I am told, a couple of alcoholics, helped temper the landlord’s rage, as he’d rather have them out owing money than in without paying (and without being able to rent out).

The lady, presumably after having guzzled a couple of gallons of wine, thought up a new law whereby not having a written contract meant that they were not liable for payment, that a notary was required to make a binding agreement or that no verbal agreement had been struck, in spite of them having paid two months deposit and one month of rent to a real estate agent. A very confused mind, indeed.

Non-payment is a big problem mostly because tenants seem to forget that their obligation of payment (in fact, the only one, other than maintaining the property as they received it) is not conditional upon the landlord doing anything: Spanish law does not allow renters to withhold the rent under any circumstance (other than destruction of the property). If they wish to make a claim, it has to be done separately from the main obligation of payment of the rent.

The string of excuses for not paying is endless, and enumerating all would be boring, so I have thought that the best advice I can provide is for both landlords and tenants to know what their respective rights are and what they can do about them (note that rights have a corresponding obligation, and vice versa).

Rights and obligations of a landlord:

• Right to get paid on time.
• Obligation to provide a property in a good and habitable condition for the use it is destined to, as well as in an optimal hygiene and safety standard.
• Obligation to maintain the property in a good state, carrying out the reparations that are required (maintenance, functionality and security), except for the normal wear and tear the property is likely to suffer with use.
• Obligation to not impede the unhindered use of the property by the tenant, except  in those cases where the property is in need of urgent repairs.

Rights and obligations of the tenant:

• Obligation to pay on time (this means no withholding of rentals).
• Obligation to keep the property in good condition, as was received.
• Right to demand from the landlord the necessary repairs to conserve the property in a habitable condition.
• Obligation to pay for small jobs that are necessary by normal use (wear and tear) of the property

A Note on Maintenance Works and Repairs

In respect of repairs, the following is to be noted:

• Conservation Repairs: The tenant will have the right to demand from the landlord the necessary repairs to conserve the property in a habitable condition for the use it was intended to, unless the damage to be repaired is attributable to the tenant, exclusively. If these repairs are to last more than 20 days, the tenant will have the right to reduce the rental, proportionally to the part of the property he/she cannot use. Small jobs that are necessary by normal use of the property are to be paid by the tenant (wear and tear). According to the Spanish Supreme Court, conservation or necessary repairs are those that are indispensable for the property to be kept in the use determined by the contract, referred to the time when the tenant took possession of the property, without this right being indefinitely extended in favour of the tenant. The tenant will have to notify the landlord, as soon as possible, of the need for any repairs (to keep the property in a habitable condition, as above), and allow the landlord direct verification, for this purpose exclusively, personally or by technical staff appointed for it, of the state of the property. Only where these repairs are necessary to avoid imminent damage or grave discomfort, will the tenant have the right to carry them out, and immediately demand payment to the landlord.

• Improvement Repairs: The tenant is obligated to accept improvement works that cannot be reasonably deferred until completion of the tenancy agreement. The landlord will have to give 3 months notice prior to his intention to start the works, after which time the tenant will have the right to cancel the contract, unless these are not essential. The tenant will have the right to a proportional reduction in the rental if he/she chooses to remain in the agreement. According to the Supreme Court, these are repairs that enhance comfort, convenience, luxury, recreation, embellishment or value of the property.

Renting property is always a high-risk business, especially when a landlord is unlucky enough to mistakenly end up giving access to a professional at not paying rent. But if this happens, wait no longer than a day after payment was due and get your lawyer to give notice of eviction.

Antonio Flores Litigation, Property evicting non paying tenants, eviction in Spain, rental contract spain, rental contracts in spain, rental spain, spanish tenancy agreement

Viewers of this post may initially be lost with the title of it, but will soon know what I am writing about. As we say in Spain, there is a lawyer and a doctor in each family, even if no member of it has finished high-school, given the abundance of advice you tend to get from some family members when you have abdominal pain or you are about to sign a rental agreement with a tenant.

In the Costa del Sol, and definitely in the rest of Costas, many foreign individuals seek advice for legal issues, but they use neither traditional legal advisers nor less formal legal sources. Instead, in the majority of cases (reportedly three quarters!) they obtain advice from family and friends, and from a broad range of non-legal professionals, including professionals working in many other fields who are known to the information seeker. They also have the habit of roaming through expat forums with the hope of getting the answer they wish to listen, and which rarely conforms to reality (unfortunately). Thus, there appears to be an informal network of non-legal practitioners who are routinely consulted by people with legal problems and who have created a parallel case law which is simply wrong.

You will know what I am writing about when you read some the beliefs spread in our Costas during years of pseudo-legalese innuendo, hearsay and gossip in bars and pubs, “chiringuitos”, Christmas Dos and other socializing events appropriately lubricated with abundant booze. Lets start with a few:

Spanish Wills & Inheritance

1. Die without a will and the Spanish Government will snap up everything: this is a classic I must have clarified at least 999 times. NO, Spanish law does not say this, it says that if you die without a will then you die intestate, in which case your personal national law applies, and only if no inheritors turn up will the Spanish Government ultimately claim ownership (someone has to!). As an example, according to Hubert Bocken and Walter de Bondt (Introduction to Belgian Law) most Belgian married people with children die intestate and therefore Belgian rules will apply, with usufruct rights passing to the heirs. This will happen too to any Spanish property or asset owned by a Belgian national because his/her law says so.
2. My English will is not valid in Spain: it is perfectly valid but it needs to be translated, legalized and the authorship confirmed by the Spanish Courts. Of course, it better include Spanish or worldwide assets because otherwise it has not relevance. The best option in this case is to obtain grant of probate by the Courts that can then be legalized and translated for its use in Spain.

Spanish Rental agreements

1. My tenant is not paying, I will change the locks: FORGET IT, you can end up in the gallows for this because it is trespassing.
2. My tenant is not paying; I will cancel the electricity and water supplies: CAREFUL, doing this is punishable under the Spanish Criminal Code as it is considered to be coercion and/or harassment.
3. My landlord has not made some repairs I have asked him to do so I am deducting the repair costs from the rent. NO, if you do this you can get evicted. Rent has to be paid every month, religiously, and if you want to ask him to carry out remedial work on the property you have to notify him formally. They are 2 separate issues and cannot be mixed up because the law has established this.
4. I have an 11 month contract which I am told is short term and so I will be able to kick the tenant out on expiration of the term: FALSE, all residential rental contracts can be challenged and extended up to 5 years, optional for the tenant and mandatory for the owner. A registration certificate with the local Town Hall will suffice to invoke this.
5. My contract is in German so it is not valid: A very common fallacy. Any document which can be translated by a registered or certified translator or interpreter is valid in a Court of law.

More to come on my next Post!

Antonio Flores Inheritance, Property legal gossip, rental contract spain, rental contracts in spain, rental spain, spain will, spanish tenancy agreement, Spanish Wills, will in spain

At last the Government has pre-approved a law proposal (PDF-Spanish) to encourage property owners to rent out their properties. Even though property sales have slowed down substantially, the property rental market is not increasing, and a staggering 2.8 million properties in Spain remain empty. 

The proposed changes will mainly target the excessive length of proceedings (which in some instances can take up to 12 months) to enforce an eviction process. Below is a summary of the main law changes to be approved in due course:

• Notice of payment prior to going to Court is reduced from 2 months to 1.
• The Court proceedings are now conducted via an equivalent to a small claims court procedure and are therefore a ruling can be reached in a couple of months (depending on the specific Court).
• The Court ruling will now be enough to evict a tenant and will be enforced within 30 days, without having to execute the ruling (whereas before the ruling was not automatically enforceable as the landlord had to instigate this action). If the tenant cannot be found the ruling will be notified in the notice board which each Court has and will proceed to send the bailiffs.
• Landlords will be able to demand return of the property if they need it not only for their own use but for that of parents and children. This clause will have to be inserted into the contract in order to be enforceable.

It will be interesting to see how these measures, in addition to others, bring dynamism to an otherwise stagnant market and, more importantly, if the court system will be able to cope with the expectations these changes will introduce.

Antonio Flores Uncategorized rental contracts in spain, rental spain, spanish rental contracts, spanish rentals, spanish tenancy agreement