The new Andalusian Land Law:

fewer obstacles, regularization of rustic houses

and faster urban plans

 

  • The List enters into force with the aspiration of removing Andalusian urban development from the paralysis.
    Nearly 300,000 irregular homes on rural land will be eligible for urban consolidation.
    The municipal PGOU may spend from 10 to 2 years on average in their execution

La Lista permitirá desarrollar los planes urbanísticos con menos trabas

Junta de Andalucía The List will allow the development of urban plans with fewer obstacles

 

The Law to Promote the Sustainability of the Territory of Andalusia (List), approved in November, which entered into force on December 23 and whose regulations will be approved in the next six months, has been and is one of the banners of the "Government of change" led by Juanma Moreno, who prides himself on having undertaken a "de-ideologized" crusade to lighten the heavy bureaucracy woven in Andalusia after almost 40 years of socialist governments. The new Land Law participates in that idea (which the Board has also developed in its three administrative simplification decree laws) of eliminating obstacles, filters, categories and assumptions that had led to a sclerosis of urban development under the LOUA, approved in 2003

These are some of its keys:

 

 rustic flooring

The star measure, and the most controversial, is the one that concerns urban qualifications. Compared to the previous model of three classes of land (urban, developable and non-developable), only two classes are set: urban and rustic. The subcategories of consolidated and unconsolidated urban land are also eliminated. The Board believes that this new categorization realistically and practically reflects the reality of land in Andalusia and avoids establishing redundant cases.

 

rustic "regularization"

This commitment to remove obstacles to rural spaces, brings about a "regularization" that would affect nearly 300,000 homes built on undeveloped land during the last decades. The Board intends to facilitate its consolidation, although it insists that it is not an "amnesty". Taking these houses out of irregularity will allow organizing and rationalizing an already existing reality, legally prescribed. Providing them with legal certainty reverts to their territorial integration and their environmental adaptation.

 

 non-urban environments

 The Law also opens the door to construction, within the legal framework, of new homes on rustic land without directly depending on agricultural uses as was established until now. It is understood that allowing this type of construction, provided that the new homes are isolated and single-family, favors the development and integration of rural Andalusia and prevents an underground economy of this type of construction.

 

faster plans

The relaunch of the general urban plans of the Andalusian municipalities is another of the workhorses of the Andalusian Government of PP and Citizens. The Minister of Development, Infrastructure and Territory Planning, Marifrán Carazo, has given the example of Macharaviaya, a small town in Malaga that has been unable to carry out a new PGOU for 18 years. Three out of five Andalusian municipalities are without a general plan today.

The duplicities, the excessive obstacles and the refusals in the courts have led to a scenario in which the most usual thing is that a general plan goes ahead in 10 years, which is generally the term for which it is specified. The Board calculates that, with the List, these terms will be greatly reduced, up to two years on average, thanks to giving primacy to the voice of the municipalities over regional auditing.

 

more local power

 This supposes a reinforcement of local competences, since the municipalities are allowed to approve their general urban planning plans without facing the approval of each council in the different stages of the process. The regional administration maintains, yes, full powers in matters of land planning and the management of territorial actions. But his "step back" will allow the PGOU to be developed more quickly, especially in smaller localities. Thus, the List has created the figure of the Basic Plan, simpler and with less content, for municipalities with fewer than 10,000 inhabitants that are not coastal and are not part of urban agglomerations.

 

Regulatory simplification

 In line with the crusade for administrative rationalization and simplification undertaken by the regional government, the new Land Law involves the modification of 44 regulations and repeals three laws and three decrees. Counselor Marifrán Carazo values that, without diminishing legal certainty, the List undoes the existing "regulatory tangle", speeds up procedures, reduces deadlines and bureaucratic burden. All this to avoid the paralysis of the urban sector and achieve the launch of new plans that adapt to a reality that has changed a lot since the approval of the now extinct LOUA. the Board understands that the List "gives land use planning a positive approach in such a way that it provides opportunities and is not perceived, as it has been up to now, as another obstacle".

 

Sustainable development

 The Law includes the concept of sustainable development from an environmental, social and economic perspective. Measures of respect for the environmental values of natural resources, protection of the coastline, of the historic quarters, as well as speeding up actions on the consolidated city, avoiding the unnecessary occupation of land, are incorporated. Economic sustainability in urban activity entails a guarantee for the execution of the actions and provides certainty to the forecasts of the urban planning instruments.

 

Public-private partnership

 Another of the legs on which the "philosophy" of the PP-Cs government in Andalusia is based has been that of not hindering private initiative. Faced with a suspicious conception of the private, the new relationship of the Andalusian public administration wants to be sensitive to their demands and facilitate their development within the current framework. Thus, the List incorporates mechanisms for the collaboration of individuals in urban planning activity. The integration and participation of professional associations and certifying entities in the field of licenses is also promoted.

 

 

 
 
Cambios en la duración del contrato de arrendamiento de vivienda
 
The different reforms of the Law have been introducing changes in the duration of the housing lease contract.
DECEMBER 2, 2021
14 minute read
 
What is the minimum time for renting a home?

The parties to the contract (landlord and tenant) are free to agree on the duration they consider.

Notwithstanding this freedom of agreements, the law establishes that if the agreed duration is less than a certain term, which is what has been changing with the reforms, the tenant may extend the contract at will until the lease reaches the minimum duration that at that time lay down the law.

The parties to the contract (landlord and tenant) are free to agree on the duration they consider.

Notwithstanding this freedom of agreements, the law establishes that if the agreed duration is less than a certain term, which is what has been changing with the reforms, the tenant may extend the contract at will until the lease reaches the minimum duration that at that time. set the le

In 2017, a housing lease agreement was signed and a term of one year was agreed upon. In this case, the tenant can leave on that date but if he does not want to leave, the urban lease law protects him and allows him to stay for up to a total of 3 years because the LAU in that year 2017 established a minimum duration of 3 years to will of the tenant even if a year had been agreed in the contract.

 

How long is a lease valid?

The validity will be the one agreed upon by the parties in the contract. If a duration of 8 years has been agreed in the lease, that will be the term.
Having said this and as we have just answered the previous question, the Law has provided that when the parties contract a duration shorter than that provided for in the LAU, the tenant has the power to continue leasing the home for the minimum duration period. that at that time is in force by law.

Summary:

If the duration agreed in the contract is greater than that provided by law as a minimum duration, it will be necessary to comply with the term agreed in the contract. On the other hand, if the duration agreed in the contract is less than the minimum legally established, the tenant may continue in the dwelling during the established legal term.

Example of a change in the duration of a contract:

A housing lease is signed in February 2021 for one year. As the LAU currently has a minimum duration of 5 years, the tenant, despite signing a year of validity, may be in the home at will until February 2026.

Below we will see the minimum duration of the lease contracts according to the changes that have occurred in the Urban Leasing Law

 

Changes in the duration of the housing lease contract according to the reforms of the LAU

 Contracts entered into from June 6, 2013 to December 18, 2018

For contracts that have been entered into between those dates, article 9 of the LAU provided the following for the minimum duration of the contract:

1º.- The duration of the contract will be that freely agreed by the parties.

2º.- In the event that the home lease contract states that the duration is less than 3 years, the tenant has the right to extend the contract and remain in the home for up to 3 years (3 years).

3º.- Once the 3 years have elapsed, if neither party has notified the other, at least thirty days in advance of that date, of their desire not to renew it, the contract will necessarily be extended for one more year.

4º.- After that fourth year, if the parties do not communicate anything, the relationship enters into tacit renewal.

 Contracts entered into from December 19, 2018 to January 23, 2019

All these changes were approved in Royal Decree-Law 21/2018 of December 14. The entry into force of this amendment to the Urban Leasing Law (LAU) occurred on December 19, 2018.

▷ Warning

Since Royal Decree-Law 21/2018 was not approved by the Congress of Deputies, its application will only serve for those housing lease contracts that were entered into from its entry into force on 12.19.2018 until 01.23.2019 , date its repeal.

Therefore, for housing leases held in this period, article 9 of the LAU established the following:

1º.- The duration of the contract will be that freely agreed by the parties.

2º.- When the landlord is a natural person, and the housing lease contract states that the duration is less than 5 years, the tenant has the right, if he wishes, to extend the contract and remain in the dwelling until 5 years.

If the landlord is a legal person (company), the tenant has the right, if he wants, to stay in the apartment for up to 7 years.

3º.- Once the 5 or 7 years have elapsed (if the lessor is a legal entity), if neither party has notified the other, at least thirty days prior to that date, of their desire not to renew it, The contract will be obligatorily extended for annual terms up to a maximum of three more years.

4º.- After these 8 years of duration (first 5 + 3 extensions) if the lessor is a natural person, or those 10 years of duration (first 7 + 3 extensions) if the lessor is a legal person, if the parties do not communicate anything the relationship enters into tacit renewal.

Contracts entered into from January 24, 2019 to March 5, 2019 

For contracts that have been concluded between those dates, article 9 of the LAU provided for the minimum duration of the contract as follows:

1º.- The duration of the contract will be that freely agreed by the parties.

2º.- In the event that the home lease contract states that the duration is less than 3 years, the tenant has the right to extend the contract and remain in the home for up to 3 years (3 years).

3º.- Once the 3 years have elapsed, if neither party has notified the other, at least thirty days prior to that date, of their desire not to renew it, the contract will necessarily be extended for one more year.

4º.- After that fourth year, if the parties do not communicate anything, the relationship enters into tacit renewal.

 Contracts entered into from March 6, 2019 to the present

On March 6, 2019, another reform of the LAU came into force that affected the minimum duration of housing leases, with article 9 being worded as follows:

» 1. The duration of the lease will be freely agreed by the parties. If this is less than five years, or less than seven years if the lessor is a legal entity, when the contract expires, it will be obligatorily extended for annual installments until the lease reaches a minimum duration of five years, or seven years. years if the lessor is a legal entity, unless the lessee informs the lessor, at least thirty days prior to the date of termination of the contract or any of the extensions, his desire not to renew it.

Therefore, for housing leases held from March 6, 2019 onwards, the following is established:

1º.- The duration of the contract will be that freely agreed by the parties.

2º.- When the landlord is a natural person, and the housing lease contract states that the duration is less than 5 years, the tenant has the right, if he wishes, to extend the contract and remain in the dwelling until 5 years.

If the landlord is a legal person (company), the tenant has the right, if he wants, to stay in the apartment for up to 7 years.

3º.- Once 5 years or 7 years have elapsed (if the lessor is a legal entity), if neither party has notified the other, at least thirty days prior to that date, of their desire not to renew it, The contract will be obligatorily extended for annual terms up to a maximum of three more years.

4º.- After these 8 years of duration (first 5 + 3 extensions) if the lessor is a natural person, or those 10 years of duration (first 7 + 3 extensions) if the lessor is a legal person, if the parties do not communicate anything the relationship enters into tacit renewal.

 

Assumptions that may occur regarding the duration of the housing lease and its changes

 A) If the lessor is a natural person (article 9.1 LAU):

The duration of the lease will be freely agreed by the parties.

If this is less than five years, when the contract expires, it will be obligatorily extended for annual installments until the lease reaches a minimum duration of five years, unless the lessee informs the lessor, at least thirty days in advance. at the date of termination of the contract or any of the extensions, their will not to renew it.

This means that the tenant may remain if he so wishes with the housing rental contract for up to five years.

There is an Exception to the above rule (only when the landlord is a natural person): After the first year of the contract, the landlord may request that the home be delivered to him because he needs to occupy it, his spouse in case of separation or divorce, or one of your first degree relatives by consanguinity or adoption.

In order for the landlord to request housing out of necessity, he has to notify it two months in advance.

The duration of the lease will be freely agreed by the parties.

If this is less than seven years, when the contract expires, it will be obligatorily extended for annual installments until the lease reaches a minimum duration of seven years, unless the lessee informs the lessor, at least thirty days in advance. at the date of termination of the contract or any of the extensions, their will not to renew it.

This means that when the lessor is a company (a company), the tenant may remain, if they wish, with the housing rental contract for up to seven years.

When the lessor is a legal person, it is not possible to request housing due to the need for occupation.

 B) If the lessor is a legal person (article 9.1 LAU):

The duration of the lease will be freely agreed by the parties.

If this is less than seven years, when the contract expires, it will be obligatorily extended for annual installments until the lease reaches a minimum duration of seven years, unless the lessee informs the lessor, at least thirty days in advance. at the date of termination of the contract or any of the extensions, their will not to renew it.

This means that when the lessor is a company (a company), the tenant may remain, if they wish, with the housing rental contract for up to seven years.

When the lessor is a legal person, it is not possible to request housing due to the need for occupation.

 

What happens if the 5 years of duration elapse with the lessor being a natural person?

 The changes in the duration of the housing lease have provided for the following:

If the lessor is a natural person (article 10.1 LAU):

If the expiration date of the contract, or any of its extensions, after at least five years of its duration has elapsed, neither party has notified the other, at least four months in advance of that date in the In the case of the lessor and at least two months in advance in the case of the lessee, his/her wish not to renew it, the contract will be obligatorily extended for annual terms up to a maximum of three more years, unless the lessee informs the lessor with one month of prior to the termination date of any of the annuities, their willingness not to renew the contract.

That is to say, if before these 5 years of duration and within the indicated periods there have been no communications of "non-renewal" of the contract, the tenant may remain if he so wishes for another three years in the dwelling.

 

What happens if the 7 years of duration elapse while the lessor is a legal entity?

 If the lessor is a person or a legal person (article 10.1 LAU):

If the expiration date of the contract, or any of its extensions, after at least seven years has elapsed, neither party has notified the other, at least four months in advance of that date in the case of the lessor and at least two months in advance in the case of the lessee, his/her wish not to renew it, the contract will be obligatorily extended for annual terms up to a maximum of three more years, unless the lessee informs the lessor one month in advance of the date termination of any of the annuities, your will not to renew the contract.

That is to say, if before these 7 years of duration and within the indicated periods there have been no communications of "non-renewal" of the contract, the tenant may remain if he so wishes for another three years in the dwelling.

Can the landlord recover the home before the minimum term provided for in the Law?

 

The landlord may repossess the leased property before the minimum legal term has elapsed, provided that the following requirements are met:

1.- That the lessor is a natural person (lessor companies cannot).

2.- That the first year of the contract has elapsed.

3.- The need for the landlord to occupy the rented home within five years has been expressly stated in the contract in order to use it as a permanent home for himself or his relatives in the first degree of consanguinity or by adoption or for his spouse in cases of final judgment of separation, divorce or marriage annulment.

4.- The lessor must inform the lessee that they need the rented dwelling, specifying the cause or causes among those provided in the previous paragraph, at least two months before the date on which the dwelling is going to be needed and the tenant will be obliged to deliver the leased property within that period if the parties do not reach a different agreement.

 What happens if the lease expires?

When the rental contract expires because the minimum duration provided for in article 9 of the LAU has been reached and the landlord has not notified the tenant that he has to leave the house, the contract enters into the legal extension provided for in article 10 of the LAU. LAU.,

Currently and for housing leases entered into from March 6, 21019 onwards, the extension will allow the tenant to continue with the home for up to 3 more years.

After these 3 years of legal extension (also called voluntary), the contract will continue in tacit renewal.

▷ Conclusion on the duration of the housing lease:

To find out the minimum duration of our housing lease regardless of what is agreed, you must go to the Urban Leasing Law that was in force on the date of signing the contract.

 

 
LEASES
 
 
Finalización de la prórroga legal en el arrendamiento de vivienda
 
What happens at the end of the legal extension in the housing lease when the parties have not terminated the contract.
DECEMBER 9, 2021
10 minute read

Index of contents

We are going to see the legal consequences of the termination of the legal extension in the housing lease when the tenant continues to occupy the property.

The first thing is to briefly explain each of the concepts and legal regulation that exists in this matter so that we can situate ourselves in front of the question that we pose.

Duration of the housing lease:

Contracts entered into between 1-1-1995 and 5-6-2013:

The duration of the housing lease will be that freely agreed upon by the parties.

If it is less than five years (example: the contract states that the duration is ONE YEAR), when the contract expires (after that year) and if the tenant wants to continue with the contract, it will be extended mandatory for the lessor for annual terms until the lease reaches a minimum duration of 5 years (art. 9 LAU).

With this rule, the tenant is allowed, even if the contract has stated a duration of less than 5 years, to remain in the home for up to 5 years.


It is a right in favor of the tenant to remain in the dwelling for up to 5 YEARS, regardless of whether a shorter duration has been stated.

After this minimum duration of 5 years, if the parties do not say anything about the resolution of the contract (with legal notice), the lease will be extended for another 3 YEARS at the will of the tenant.

Example:

If a lease is signed on 11/1/2012 for a duration of 1 year; If the tenant wants to continue in the home after that year, the Law protects him and he can be in the use of it for up to 5 years, that is, until 10/31/2017).

After this 5-year term, if the parties do not say anything (they do not communicate that the contract is terminated), the lease will be extended for up to a maximum of THREE YEARS at the will of the tenant.

 

Remember that this extension is no longer mandatory for the landlord if, before the end of the first 5 years, the tenant is informed of the termination of the contract and that the property is handed over to him. If the lessor does not terminate the contract at the end of the first 5 years, the contract is extended for 3 more years, so following the example we have given, it will end on 10/31/2020.

Article 10 LAU:

«If the expiration date of the contract arrives, after at least five years have elapsed, neither of the parties has notified the other, at least one month before that date, of their desire not to renew it, the The contract will be obligatorily extended for annual terms up to a maximum of three more years.

RESUME:

In housing lease contracts entered into between the period (1-1-95 and 5-6-2013), the tenant can stay in the home for at least 5 years (at their will) or 3 more years, provided that the landlord has not communicated its will to terminate the contract in accordance with the provisions of article 10 LAU.

From the end of the legal extension in the housing lease, the contract enters into tacit renewal (which we will explain its meaning later).

Lease contracts entered into between 6-6-2013 and 5-3-2019:

The duration of the lease will also be that freely agreed upon by the parties.

If it is less than 3 years, when the contract expires and if the tenant wants to continue with the lease, it will be obligatorily extended for the lessor for annual terms until the lease reaches a minimum duration of 3 years (art. 9 LAU).

With this rule, the tenant is allowed, even if the contract has stated a duration of less than 3 years, to remain in the home for up to 3 years.

It is a right in favor of the tenant to remain in the dwelling for up to 3 years, regardless of whether a shorter duration has been stated.

After this minimum duration of 3 years, if the parties do not say anything (they do not communicate with prior notice that the contract expires), the lease will be extended for one year at the will of the tenant.

Remember that this extension is no longer mandatory for the landlord if before the end of the 3 years he informs the tenant that the contract is ending and that he delivers the home. If he does not say anything and the tenant wants to continue, the contract is extended for another year.

Example:

A lease is signed on 02/01/2017 for a duration of 1 year; If the tenant wants to continue in the home after that year, the Law protects him and he can be in the use of it for up to 3 years, that is, until 01/31/2020).

After this minimum duration of 3 years, if the parties do not say anything (they do not communicate that the contract is terminated), the lease will be extended for another year at the will of the tenant.

Remember that this extension is no longer mandatory for the landlord if, before the end of the first 3 years, the tenant is notified of the termination of the contract and that they hand over the property. If the lessor does not terminate the contract at the end of the first 3 years, the contract is extended for 1 more year, so following the example we have given, it will end on 01/31/2021.

Article 10 LAU: «If the expiration date of the contract, or any of its extensions, has elapsed after at least three years of its duration, neither party has notified the other, at least thirty days in advance at that date, his will not to renew it, the contract will necessarily be extended for one more year».

Therefore, in housing leases, entered into between 06-06-2013 and 03-05-2019, the tenant can stay in the home for at least 3 years (at their will) and 1 more year as long as the lessor has not communicated his will to terminate.

As of the completion of the legal extension in the housing lease, the contract enters into tacit renewal.

Lease agreements entered into as of 03-06-2019:

With the latest reform of the Urban Leasing Law, housing lease contracts concluded after March 6, 2019, will have a duration of 5 years if the lessor is a natural person or 7 years if it is a legal person. .

After this duration of 5 years (individual lessor) or 7 years (legal person lessor), if the parties do not say anything (they do not communicate that the contract is terminated), the lease will be extended up to a maximum of 3 more years at tenant's will.

Remember that this extension is no longer mandatory for the landlord if before the end of the 5 or 7 years he informs the tenant that the contract is ending and that he delivers the home. If he does not say anything and the tenant wants to continue, the contract is extended for another 3 years.

What is the tacit redirection?

The tacit renewal is established in article 1,566 of the Civil Code:

"If at the end of the contract, the tenant remains enjoying fifteen days of the leased thing with the consent of the lessor, it is understood that there is a tacit renewal..."

The tacit renewal, therefore, is the situation in which the lease remains once the term of the legal extension of article 10 of the LAU has ended (three years of contracts prior to 6-6-2013 and ONE year in those between on 6-6-2013 and 5-3-2019); If the tenant, at the end of these legal extension periods, continues to use the home for 15 days without the landlord notifying him that the contract has ended and that he must vacate the property, the lease will continue in force.

The tacit renewal (according to the Jurisprudence) implies a new lease.

The duration of this new contract in tacit renewal will be the one provided in article 1,581 of the Civil Code:

It will be understood to be done for years when an annual rent has been set in the original contract.
For months when a monthly rent has been set.
And for days when it is daily.
Examples:

A) If an annual rent of 6,000 euros was set in the lease, to be paid monthly at a rate of 500 euros/month, after the legal extension of article 10 of the LAU (3 years or 1 year depending on the start date of the contract), and after 15 days in the use of the dwelling by the tenant with the consent of the lessor, the contract will continue for one more year when the annual rent is agreed, and so on. Each year a new contract is perfected.

B) In the lease, the rent was set monthly, at a rate of 400 euros every month; Once the legal extension of article 10 of the LAU has ended (3 years or 1 year depending on the start date of the contract), and after 15 days have elapsed in the use of the dwelling by the tenant with the consent of the landlord, the contract will continue for one more month when the monthly rent is agreed, and so on. Each month a new contract is perfected.

Judicial procedure to recover the property:

If the landlord informs the tenant of his desire to terminate the contract and therefore prevent the next tacit renewal and the tenant does not leave the property, the landlord may resort to the eviction procedure due to the expiration of the term, as provided in article 1569 of the Civil Code:

"The lessor may judicially evict the lessee... for having expired the conventional term or the one set for the duration of the leases in articles 1,577 and 1,581."

Summary:

At the end of the legal extension in the housing lease, the rental relationship will continue if the tenant remains in the lease for 15 days with the consent of the landlord. This rental situation implies a new contract between the parties, the duration of which will be determined by the provisions of article 1,581 of the Civil Code.

Duration of a room lease

Duración del arrendamiento de una habitación

The duration of the lease of a room will be that agreed in the contract as it is not subject to the Law of urban leases.
NOVEMBER 8, 2021
6 min read

Francisco sevilla Caceres

 FRANCISCO SEVILLA CÁCERES

0 COMMENTS

Index of contents

Before seeing the duration of the lease of a room with the right to use the common services and dependencies (normally the kitchen and the bathroom), it is necessary to see if said contract is subject to the Urban Leasing Law (LAU) or the Civil Code.

And we say this because, as you know, if the lease of the room was subject to the LAU and the contract had been formalized as of March 6, 2019,el inquilino tiene derecho a permanecer en el contrato the tenant has the right to remain in the contract for up to 5 years if the landlord is a natural person. and up to 7 years if the lessor is a legal person (company).

room is subject to the LAU or the Civil Code?

Most of the Courts, although there are some exceptions, have been proclaiming that the room rental contract is subject to the Civil Code and not to the Urban Leasing Law.

The arguments that they expose coincide that »according to what is established in art. 2 of the LAU, the lease of housing is defined as that lease that falls on a habitable building whose primary purpose is to satisfy the tenant's permanent need for housing, being essential, to resolve the issue raised, the specification of the term of habitability of the object leased in the specific case at hand.

A building will be habitable when it is adequate to serve the needs of dwelling or residence, where the person or family develops the intimacy of their existence, constituting their home, without this concept being properly transferable to a room or dependency that is part of a dwelling, object of the contract signed between the parties, since it lacks the minimum and essential services (bathroom, kitchen,...), and that are only supplied by the granting of the right to use it in a shared, not exclusive, manner. other dependencies that are simultaneously served by the remaining occupants of the dwelling.”

Provincial Court of Madrid (Section 9), judgment of 03.28.2019

«The controversial issue is therefore centered on the determination of the legal nature of the contract concluded by the parties. The lease, according to document No. 1 of the lawsuit, falls exclusively on one room of the house, the tenant being able to use the kitchen and any of the shared bathrooms with the commitment to share with the rest of the tenants the cleanup.

According to article 2 of the LAU, "housing lease is considered to be that lease that falls on a habitable building whose primary purpose is to satisfy the tenant's permanent need for housing."

This characteristic of permanently satisfying the housing needs of the tenant is not predicable of a room that does not guarantee the development of the tenant's domestic life with the intimacy and services that are considered essential today, which are only available on a shared basis. . The space that is assigned exclusively is only that of a room, which cannot be understood as included within the definition of article 2 of the LAU. This is provided for in the contract itself that refers to the regime of articles 1,542 to 1,582 Civil Code in everything not provided for in its text.»

What does the Civil Code say about the duration of a room lease?

For the sector that considers that the rental of a room is excluded from the LAU and therefore subject to the Civil Code, the duration will be determined by the following rules:

1.- It will be the duration freely agreed upon by the parties, concluding on the predetermined day without the need for a request (art. 1565 Civil Code). (art. 1565 Código Civil).

 

2.- If at the end of the contract, the tenant remains enjoying fifteen days of the leased thing with the consent of the lessor, it is understood that there is a tacit renewal for the time established in articles 1,577 and 1,581 of the Civil Code,artículos 1.577 y 1.581 del Código Civil unless there has been a prior request .tácita reconducción

3.- The duration of the lease of a room when no term has been set for the lease, will be understood as done for years when an annual rent has been set, for months when it is monthly and for days when it is daily.

 

Procedure to follow for the eviction of a room lease:

Provincial Court of Madrid (Section 14), sentence 05.05.2020:

«The sentence issued in the first instance explains that the defendant has admitted not having paid all the agreed rent, due to the breach of the obligations assumed by the lessor. It does not challenge the lease, which establishes the rent at 280 euros per month, nor does it justify a verbal agreement altering the previous stipulation.

Regarding the applicable regulations, if the lease falls on one of the rooms or dependencies of a dwelling, the provisions of articles 1554 and following of the Civil Code  artículos 1554 y siguientes and general precepts on obligations and contracts must be followed.

Consequently, considering that the obligation to pay the price is essential in the lease, its breach allows the resolutory effect of art. 1124 Civil Code art. 1124 Código Civil,, in relation to art. 441.1 Law of Civil Procedure in the procedural aspect, which for rental processes limits the allegations and means of proof of the defendant in relation to payment, or enervation...

It should be remembered that for lease contracts subject to the general regulations of the civil code, article 1569 of the Civil Code contemplates the power of the landlord to initiate an eviction proceeding for non-payment of rent, declaring that: » The landlord may judicially evict the lessee for any of the following reasons: (...) 2nd Failure to pay the agreed price». And that said eviction process is subject to the limitations of allegation, and means of proof, contemplated in art. 444.1 art. 441.1 Ley de Enjuiciamiento Civil transcribed above, with the result that the testimonial evidence that is proposed is not intended to prove either the payment of income, or the enervation."

 

Observation:

If you want to read some sentences about the subjection of the room lease contract to the Civil Code CLICK HERE  - arrendamiento de habitación al Código Civil PINCHAR AQUÍ

 

 

 

PENAL

Delito de daños en la vivienda alquilada

Crime of damage to rented housing

One of the elements required to face a crime of damage to rented housing or furniture is intent.
OCTOBER 30, 2021
8 min read

Francisco sevilla Caceres

 FRANCISCO SEVILLA CACERES
Lawyer
3 COMMENTS


Index of contents

We are going to see some important issues of the crime of damage to the rented home or to the furniture when the lease has been made with furniture and fixtures.

The Penal Code punishes those behaviors in which the subject causes damage to other people's property. Article 263 artículo 263 that in these cases the subject will be sentenced to a fine of 6 to 24 months, provided that the valuation of the damage exceeds 400 euros.

If the damages do not exceed 400 euros, he will be sentenced for a minor crime of damages (old misdemeanor)delito leve de daños with a FINE of 1 to 3 months.

If you want to read more about the crime of damage CLICK HERE.PINCHA AQUÍ.

 

Will all the damages that appear in the house or in the furniture be considered a crime?

The answer is no.

The mere fact that damage to the home or furniture appears at the end of the rental does not mean that such conduct is considered a crime.

 

In order for said damages to have a criminal reproach, that is, for us to speak of a crime of damage to the rented home, it is required that they have been caused intentionally or willfully.

Damages due to gross negligence may also be penalized as long as their value exceeds 80,000 euros (which is unlikely in these cases).

In other words, if the damage has been caused by the usual desgaste usual wear and tear of things or by simple recklessness, we would not be talking about a crime but rather a civil matter that can be heard in civil courts but not in criminal courts. 

How must the damage to the home or furniture be accredited?

The damages must be accredited by the owner of the house.

Hence the importance that immediately when the lease contract ends or the property is taken by the Court if an eviction procedure has been carried out, the state of  procedimiento de desahucio home is examined by an expert and said damages are valued (photographic report , witnesses, etc).

Recommendations for the landlord and for the tenant:

 1st.- It is very important that before entering into the lease, the dwelling and the furniture be examined in detail, in order to detect any irregularity and highlight it in the contract or in an annex to it.

2nd.- Make a photographic or video report of the state of the house and the furniture when the lease is going to be signed.

3rd.- If the house is rented furnished, an inventory must be made as exhaustive as possible.

4th.- Point out any damage that may appear in the home or furniture.

Examples of crime sentences for damage to rented housing

Convicted of crime of damage

-Provincial Court of La Rioja (Section 1), sentence 04.18.2017:

» El 28 de mayo de 2012 los inquilinos entregaron las llaves de la vivienda.

El perito …., informa que visitó la vivienda el 6 de junio de 2012, presentando ésta un estado lamentable, totalmente incompatible con un uso normal de la misma, observando roturas en cajones de persianas, persianas, mobiliario, aparatos sanitarios, muebles de cocina, pavimentos de gres y parquet, alicatados, puertas, mecanismos eléctricos.., así como sustracción de mecanismos de cierre de todas las puertas, pintado de éstas de forma tosca, y suciedad general que afecta a toda la vivienda, llegando al extremo de excrementos de animales en algunas zonas.

Incorpora a su informe diversas fotografías en las que se aprecian los desperfectos y suciedad informados por el perito, en los muebles de cocina y encimera de la cocina, alicatados, puertas, lamas y cajas de persianas, armario, encimera y mueble de lavabo, y suciedad generalizada en las diversas estancias de la vivienda.

Es manifiesto que tales desperfectos exceden de los que pudieran derivarse del uso normal de la vivienda, y que no han podido ser causados sino intencionadamente, pues de otro modo no se explica que el lavabo se encuentre en el suelo, la suciedad sea notoria y generalizada, el armario no tenga puertas, las persianas estén rotas, haya boquetes en los azulejos, o que las puertas no tengan manillas…..

No hay un solo dato que permita apreciar la posible comisión del delito por un tercero en el escaso tiempo, nueve días, transcurrido entre la entrega de llaves y la inspección de la vivienda por el perito , sin que dicho perito informe que la puerta de entrada hubiera sido forzada, o que de otro modo se apreciara el acceso de terceras personas a la vivienda; resultando, en un juicio de inferencia lógico, que los daños, eminentemente intencionales, como resulta de las fotografías obrantes en autos e informa el perito, fueron causados por los acusados, pues ellos eran los ocupantes de la vivienda, sin que hayan dado una explicación razonable acerca de tan importantes daños y suciedad en la vivienda, que conforme al contrato de arrendamiento se encontraba en estado de servir al fin para el que se arrendó, así como consta en el contrato que inspeccionaron la vivienda antes de ocuparla, no siendo creíble que la ocuparan sin haberla visto, por más que se encontraran en la necesidad imperiosa de alquilar una vivienda, pues no se antoja imposible encontrar en la ciudad de Logroño un alquiler similar al pactado en este caso.»

-Audiencia Provincial de Albacete (Sección 1ª), sentencia 15.07.2010:

» Igual razón impide estimar las alegaciones sobre el delito de daños , su voluntariedad se deduce del tipo de daños , absolutamente diferente de los que se producen por un uso e incluso por un abuso de la vivienda alquilada , rotura de cristales, de las presiones, desperfectos en las ventanas, rotura de sillones, de timbre de la puerta y del telefonillo. En definitiva la Sala igual que el Juez considera que dichos daños se produjeron adrede y no son consecuencia del uso del inmueble arrendado, por lo que constituyen el delito de daños por la que se sanciona.»

-Audiencia Provincial de Barcelona (Sección 10ª), sentencia 6.09.2016:

» Ha quedado probado que la acusada Claudia, en fecha y hora no concretada pero en todo caso, entre los días 3 y 7 de Mayo de 2013, conocedora de que iba a ser lanzada de la vivienda y con ánimo de menoscabar la propiedad ajena, causó de forma consciente desperfectos y destrozos en el mobiliario y en las instalaciones de la vivienda arrendada (tales como paredes rotas, arrancados tubos y cañerías de cobre, cables de luz, sacados los enchufes, rotura de persianas ventanas y somieres y colchones rotos, grifo de la cocina roto, desaparición del contador de la vivienda etc), dejando asimismo a vivienda en un estado lamentable en cuanto a su salubridad.»

Se absuelve del delito de daños

-Audiencia Provincial de Alava (Sección 2ª), sentencia 1.09.2014:

» Los daños apreciados no llegan a objetivar una intención de dañar, sino simplemente son indicativos de que la acusada no realizó un uso adecuado de la vivienda. Se trata de daños que evidencian un uso descuidado, incluso negligente; pero no evidencian un ánimo de perjudicar al propietario, ni siquiera uniéndole el hecho de que el propietario tuvo que interponer un procedimiento de desahucio; pues de tal hecho no cabe presumir en el presente supuesto el móvil o sentimiento de venganza que nuetren la intención de perjudicar a otro.

No es extraño que las alfombras se estropeen si se dejan en el balcón porque no se quiere hacer uso de las mismas; ni es difícil que se rompa una persiana o el cristal de una mesa accidentalmente si no se es cuidadoso en el trato de las cosas; por otra parte, las pintadas con rotulador que aparecen muy localizadas en paredes son como las que haría un niño en un descuido de su cuidador; estas dos últimas razones pueden igualmente predicarse de las marcas dejadas en puertas, la mesa, la encimera de estudio color blanco, un mueble mural o el marco de dos de los cuadros, así como de las manchas en unas cortinas, e incluso del somier partido; y, por último, es de notar que las humedades en uno de los baños se localizan en el techo, desconociéndose el origen de las mismas.

La perito se limitó a describir los daños únicamente a efectos de su valoración, sin que en su informe se excluya que dichos daños se deben a un uso descuidado o negligente de la vivienda.

Existe un generalizado consenso doctrinal en la conveniencia de reducir al mínimo la persecución penal de conductas que, como la de daños, tienen ya una respuesta civil indemnizatoria o restauradora. «

 

LEASES

Tolerancia en el pago atrasado de la renta

 

Tolerance in late payment of rent

The tolerance in the late payment of the rental income does not imply the tacit consent of the landlord and may be cause for termination.
NOVEMBER 10, 2021
5 min read

Francisco sevilla Caceres

Index of contents

Although it is a non-peaceful issue and therefore discussed, the majority of the Courts are of the opinion that the mere tolerance in the late payment of rent does not imply consent on the part of the landlord and therefore is cause for termination of the rental contract.

On many occasions and for different reasons, the tenant does not pay the rent within the period established in the lease or, failing that, and in the event that nothing has been said, within the first 7 days of each month, as establishes article 17.2 of artículo 17.2 the Urban Leasing Law.

 

As he wants the payment of the rent  pago de la renta by the tenant to be the main obligation that he assumes with the contract, his non-compliance within the stipulated or legal term is cause for termination of the lease.resolución del arrendamiento

 

What happens when there has been a tolerance for late payment of rent for a certain time?

Although there are some judicial resolutions that consider the opposite (as we will see from the sentences that we have reviewed at the end of this article), the general criterion considers that "although the landlord has allowed the tenant to pay the rent late, this tolerance in late payment of the rent does not imply a permissibility for him to pay the rent whenever he wants", therefore there is no tacit consent for acceptance of this conduct by the lessor, and it may constitute cause for termination of the contract.

Judgments in favor of the resolution of the lease

– Ruling AP Murcia (Section 4) of January 7, 2011:» On the other hand, it should be noted that it has not been proven that the delay in paying the rent for the dwelling had been consented to by the landlord, since there is no proof of this fact, since the tolerance in late collection of some monthly payments rent does not imply that the landlord had tacitly consented to the late payment and that the defendants could decide at their will the date of payment and the number of monthly installments, there being no elements to be able to affirm that the landlord has brought an eviction action against the requirements of good faith or abuse of rights, article 7 artículo 7of the Civil Code.”

– AP Balearic Islands ruling (Section 5) of February 25, 2011:

» It is true that throughout 2007, it has not been proven that it happened before that year, the lessor had accepted the delayed payment of up to 15 days, a circumstance that does not allow concluding that there was a tacit agreement to admit the payment of the rent at any moment in time, much less if, as in the case at hand, the rent for the month of July is paid 62 days late and that for August 35 days.”

Judgments against the resolution of the lease

 As it could not be less, I also leave you with two sentences where, contrary to what is maintained by the majority current, they consider that tolerance in late payment of rent is not a cause for contractual resolution:

– AP Madrid Judgment (Section 20) of April 28, 2005:

» Regarding the behavior previously followed by the same tenant, it can be seen, at most, mere delays or late compliance on her part, sometimes two or three days and only on one occasion, corresponding to the month of August, the payment It was carried out the following month, a situation that cannot be considered strange within the relations of commercial traffic between companies and that in some way, at least up to the present moment and without prejudice to the precedent that this procedure has regarding future relations, have been consented or tolerated by the lessor."

– Sentence AP Ourense (Section 2) of July 8, 2004:

» It is required, in each case, to assess the behavior assumed by the contracting parties throughout their rental relationship and especially certain tolerated behaviors that may give the tenant a sensation or feeling of trust or security to act in accordance with the law being protected by a tacit agreement between the parties, thus avoiding penalizing the tenant with enervation, when in reality his will is not directed to a breach of his obligation or non-payment but simply to the maintenance of a use or custom that is tolerated by the property governs their relationship, especially in those cases such as the present one in which the lessor did not communicate in any way to the lessee its intention to promptly demand payment within the 7-day period referred to in article 17 of the LAU.»

Conclusion:

The rent must be paid within the term that appears in the contract. If the term is not stipulated in the contract, it will have to be paid within the first 7 days of each month. If the rent is paid late (even if it is only days), it can be grounds for eviction for non-payment.  desahucio por falta de pago.

 

 

Recover rented housing out of necessity

Recuperar la vivienda alquilada por necesidad

Requirements to be able to recover the rented home due to the need of the landlord or due to the need of some of his relatives.
NOVEMBER 18, 2021
10 minute read

Francisco sevilla Caceres

FRANCISCO SEVILLA CÁCERES

Lawyer
50 COMMENTS


Index of contents

We talked about the possibility of recovering the rented house due to the need of the landlord or his relatives.

This article is aimed at those housing leases entered into between June 6, 2013 and March 5, 2019. 

Rental contracts entered into as of March 6, 2019 will also be regulated by the LAU but with the modifications introduced by Royal Decree Law 7/2019, as we will explain at the end of this article.

The first thing we should know is that, depending on the date of execution of the lease, the recovery due to housing need has a different regime:

Recover rented housing out of necessity in contracts entered into from 06.06.2013 to 03.5.2019

The issue is regulated in article  artículo 9 of the Urban Leasing Law (LAU).

Section 3 of the aforementioned provision includes the possibility that the lessor can recover the property delivered for rent before the lease contract ends.


The aforementioned article artículo 9.3º LAU provides:

» The mandatory extension of the contract will not proceed if, once the first year of its duration has elapsed, the landlord notifies the tenant that he needs the leased property to use it as a permanent home for himself or his relatives in the first degree of consanguinity or by adoption or for your spouse in the event of a final judgment of separation, divorce or marriage annulment.

The aforementioned communication must be made to the tenant at least two months before the date on which the dwelling is going to be needed and the tenant will be obliged to deliver the leased property within said period if the parties do not reach a different agreement.» 

Most important issues to recover rented housing out of necessity:

– The rented home can be recovered due to the need of the landlord, as long as it is for himself, for any relative in the first degree of consanguinity or by adoption, or for his spouse in the event of a final judgment of separation, divorce or marriage annulment.

– You can request the recovery of the home out of necessity without it being necessary for this cause to have been stated in the stipulations of the lease.

– The recovery of the home may not be requested until the first year of the contract has elapsed. If the lease is after June 6, 2013, which is when the new regulations came into force, you have to wait at least a year to be able to recover it.

– The law says that “The mandatory extension of the contract will not proceed if, once the first year of its duration has elapsed, the landlord notifies the tenant that he needs the leased property to use it for permanent housing.” The aforementioned legal text, read literally, establishes that "the mandatory extension will not proceed", which means that if the contract is not in mandatory extension, but is within the contractual term agreed in the contract, the lessor You will not be able to recover the rented house out of necessity until said period has elapsed.

Sentences where an attempt is made to recover the house rented out of necessity

Judgment of the Provincial Court of Madrid (Section 21) of 06.25.2019:

«Well, the power of article 9.3 of the Urban Leasing Law to put an end to housing leasing is linked to the fact that the contract is in a situation of mandatory extension, and that contract agreed for a term of less than three years will be, or who is in the situation of article 10, for which it is necessary that the expiration date of the contract, or any of its extensions, has elapsed after at least three years of its duration.

But the lease of the defendants (tenants) is not in a situation of mandatory extension, but rather in a contractual term, which was established for a period of twenty years, so it cannot be terminated due to the need of the lessor in accordance with article 9.3 of the Law of Urban Leases.”

This lack of clarity of the law advises landlords to make contracts for a duration of ONE YEAR, thus having the possibility of recovering the home due to the need of him or his relatives, since after the contractual term of the year, the lease will have entered into a legal prórroga legal  in favor of the tenant for two more years until completing three, which allows the landlord to avail himself of this possibility of recovering the home.

– The aforementioned communication must be made by the landlord to the tenant at least 2 months before the date on which the home is going to be needed and the tenant will be obliged to deliver the leased property within said period if the parties do not reach an agreement different.

– Mere communication is not enough to recover the rented home out of necessity, but the cause must be certain and accredited, for example: a copy of the divorce decree where the rented home is attributed to one of the spouses. Prove that one of the children does not have a home to live in, etc.

– The term that the landlord or one of his relatives has to occupy the recovered home is THREE MONTHS. If it is not occupied within said period, the tenant may again request within THIRTY DAYS to return to the home and return to the rental for a duration of three years.

– In the event that the tenant returns to the dwelling because it had not been occupied in those three months by the landlord or any of his relatives, he may request compensation for the expenses that the eviction would have entailed (moving, another rent, etc.).

 

Example of a case on the recovery of housing rented by necessity

Housing lease contract from September 2018, with an agreed duration of one year, which will be extended annually (at the tenant's will) until it reaches the minimum legal duration of three years, that is, until September 2021, in accordance with article 9.1 of the LAU.

If the landlord needs the house for himself or a first-degree relative, as the agreed duration of the contract ended in September 2019, the contract is being extended for a second year, so the landlord could notify the tenant of the cause of need to repossess the home.

After everything we have said so far, the cause of necessity provided for in article 9 section 3 of the Urban Leasing artículo 9 apartado 3 de la Ley de Arrendamientos Urbanos  cannot be invoked in the first year of the contract, but it can be invoked after it is fulfilled, for what could already be done the requirement two months in advance provided that the end of this period is after the first annuity.

Recover rented housing out of necessity in contracts entered into from 03.5.2019 onwards

 

Article 9.3 of the LAU has been modified by Royal Decree Law 7/2019.

This reform will apply to contracts entered into from March 6, 2019 onwards.

The most interesting thing about this reform is that a clause must be expressly included in the contract that makes it possible to recover the home out of necessity. If said clause does not expressly appear, said recovery cannot be invoked by the lessor.

Article 9.3 of the LAU  artículo 9.3 de la LAU has been worded as follows:

"3. Once the first year of the contract has elapsed and provided that the lessor is a natural person, the mandatory extension of the contract will not proceed when, at the time of its execution, the need for the lessor to occupy the leased dwelling before five years have elapsed in order to use it as a permanent dwelling for himself or his relatives in the first degree of consanguinity or by adoption or for his spouse in the event of a final judgment of separation, divorce or marriage annulment.

To exercise this power to recover the dwelling, the lessor must notify the tenant that he needs the rented dwelling, specifying the cause or causes among those provided for in the previous paragraph, at least two months before the date on which the housing is going to be needed and the tenant will be obliged to deliver the leased property within said period if the parties do not reach a different agreement.

If after three months from the termination of the contract or, as the case may be, from the effective eviction from the dwelling, the landlord or his relatives in the first degree of consanguinity or by adoption or his spouse had not proceeded in the event of a final judgment of separation, divorce or marriage annulment to occupy this by itself, depending on the case, the tenant may choose, within a period of thirty days, between being reinstated in the use and enjoyment of the leased property for a new period of up to five years, respecting , in the rest, the contractual conditions existing at the time of termination, with compensation for the expenses that the eviction of the dwelling would have entailed up to the time of reoccupation, or be compensated for an amount equivalent to one month for each year that remain to be fulfilled until completing five years, unless the occupation had not taken place due to force majeure, understood as such, the impediment caused by those suc those expressly mentioned in regulations of the rank of Law to which the character of force majeure is attributed, or others that could not have been foreseen, or that, foreseen, were unavoidable.»

Can the rental contract be terminated due to the need of the landlord?

To find out if the housing lease can be terminated before the end of the agreed duration or that legally provided for in article 9 of the LAU, it is necessary to read if this possibility was agreed in any of its clauses in the contract.

If nothing was agreed, the contract cannot be terminated for reasons of necessity.

If this possibility was agreed in the contract, the contract can only be terminated if the person who needs the dwelling is the landlord himself or one of his first-degree relatives.

Finally, the cause of need for housing has had to arise after the contract was concluded, since if it is earlier it is possible that the tenant and the Court will reject it in the event of a lawsuit.

Burofax model termination of rental contract due to the need of the

The writing of this burofax that is offered below, is only done for an exclusively informative purpose, remembering that it is a general model that must be adapted to each assumption and situation. To see the template model you can click here - clic aquí

If you want to read more about the resolution of these contracts by necessity, CLICK HERE.- PINCHA AQUÍ.

 

 

The big question: is it better to reform or move to a new home?

Families grow, needs change, and housing preferences evolve, all the more so in today's circumstances. preferencias en lo que respecta a la vivienda evolucionan, that time comes, it is normal for the question to arise between renovating or moving. The decision is complicated and will always depend on both personal circumstances and the real estate market.

Reformar o mudarse: cuestiones clave

 

One of the first aspects that should always be assessed is whether, after a reform, the home will meet these new expectations. Sometimes, with a new distribution you can get that extra space for the office or one more room. But it will not always be possible. Being realistic with the possibilities of the property is important.

Secondly, financing must be taken into account. Whether the decision is to reform   move, accounts will have to be made. A work, especially if it is large, involves an outlay of significant money for the work itself and for the licenses and taxes that must be paid.

On the other side of the scale, the possibility of applying for subsidies will have to be assessed. The different administrations periodically launch rehabilitation aid plans that can be a small relief when facing the  la reforma and that should not be dismissed.

When it comes to buying a new house, of course, it involves a higher expense. But in this case, we must not forget that the sale of the home will already offer a good financial cushion to face the new purchase. An added bonus is that prices have been contained in recent months, although the real estate market is beginning to recover quickly.nueva compra.

When it comes to deciding whether it is better to renovate or move, in addition, we must not forget that a new home will allow us to have everything that is needed to create a true home: more meters, a terrace or garden, common areas, etc. And it will not always be necessary to seek financing. In areas with less demand (expanding neighborhoods or on the outskirts) prices are more adjusted. It is a possibility that must always be put on the table.

Analyzing the real estate market

 

The situation and evolution of the real estate market is the factor that can definitely tip the balance between renovating or moving. Expectations for the coming months are very optimistic, which is reflected in market prices.

With a reactivation in the sector that is reflected in rising prices, the first impulse will be to reform. However, this upward evolution also benefits in case of choosing to change, since a greater benefit will be obtained from the sale of the current property.

The advice is to carefully analyze the market situation and the investment or financing possibilities. With Spainhouses you won't have any difficulty, in our statistics section you can check the evolution of housing prices by areas, cities and even neighbourhoods. You can thus calculate how much your home is worth and in which areas it is more profitable to invest in a new one.

If you finally decide to move, remember that we have already offered you tips for selling and buying a house at the same time. In addition, with our search engine and the possibility of publishing your home on our website, everything will be much simpler and faster.

 

Source: https://noticias.spainhouses.net/2021/12/la-great-question-is-better-reform-or-move-to-a-new-housing/#more-54113

 

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