URBAN LEASING PROBLEMS
We are starting a new space that we are going to dedicate on our page to the problems that commonly arise in the application of the Urban Leases Law, focusing especially on those that have a greater number of cases in the Courts and Tribunals.
No one is aware that, being one of the most widely applied contracts in daily practice, the controversies that arise in its application must be greater.
In principle, we are going to detail specific problems that we will complete in successive deliveries and always trying to apply criteria from Courts.
CASES IN WHICH THE AFFECTED ONE IS THE LESSEE
It is evident that the problem affects both the tenant and the owner, and that is why we have made two different sections for each one.
If you have any questions, please do not hesitate to contact Carlos Baño León Law firm in Alicante.
REFUSAL OF EXTENSION IN THE EVENT OF NECESSITY. OCCUPY THE HOUSING.
Lease contracts beyond the agreed term may be extended at the discretion of the parties as long as they are concurrent.
In the most common cases of contracts of up to 5 years, as is known, whatever the initial period may be, the lessee of his own motion can always extend up to the legal maximum of 5 years as we have said.
This right only has one exception, which is established in art. 9 of the LAU of 29 November, and that is that once the first year of the contract has elapsed, ”there is no compulsory extension, when at the time of its conclusion, the need for the lessor to occupy the rented dwelling before the expiry of 5 years to use the dwelling for himself or for a relative in the first degree of consanguinity or by adoption, spouse, in the cases of a final judgement of separation, divorce or marriage annulment” had been expressly stated in the contract.
In these cases, and provided that he needs it for himself or the family members mentioned above, the landlord must inform the tenant that he needs the rented dwelling, specifying the cause or causes foreseen above at least 2 months in advance or on the date on which the dwelling is going to be needed; and being in an extension period, the landlord may refuse said extension, although this right must be contemplated in the rental contract signed by the parties, because if this is not the case, said right is not recognised.
It is not necessary to justify anything, although it is advisable to do so because this can influence communication with the tenant and make this refusal not traumatic or problematic.
Legally, the owner who acts in fraudulent behaviour will have a sanction that is included in article 9 of the LAU of 29 November, mentioned above, and that is that if after 3 months from the termination of the contract or eviction from the property the aforementioned persons have not proceeded to occupy the property, the tenant may choose within 30 days between being reinstated in the use and enjoyment of the property for a new period of up to 5 years or being compensated for an amount equivalent to one monthly payment for each year that remains to be completed until 5 years have elapsed.
In the specific case, two clients had had to vacate the home after receiving a burofax from the owner communicating that their son needed it.
The first thing we did, logically, was to check if there was any property in the son’s name, which would have allowed us not to recognize said right to our clients.
This person had no other assets, so before our advice, the keys were handed over, although they were informed by our law firm that they should be attentive to whether they occupied the home.
In the specific case, except for a few hours when they detected movement in the home in the following days, they saw nothing, which motivated us to carry out the pertinent checks, and after a reasonable time, we required the owner.
Fortunately, this person’s lawyer was a good and thorough professional and preferred a good agreement, so compensation was paid to our clients according to the Law.
If you have any doubts, please do not hesitate to contact Carlos Baño León, lawyer in Alicante.
REFUSAL TO CARRY OUT NECESSARY WORKS
Unfortunately, many cases also involve the owner’s refusal to cover the necessary repair costs in the home and whose use is necessary.
Obviously we are not referring to the expenses that arise due to the use of the property that must be attended to by the tenant, as established in article 21 of the LAU, Law 2994 of November 29.
We are referring to cases of works for repairs that are necessary to keep the property in good condition and maintain the tenant in the peaceful enjoyment of the lease.
Article 21 of the LAU of November 29 requires the owner to make said repairs to the home.
Even though this is crystal clear, unfortunately there are many owners who are unaware of this right and make it difficult to carry out said works.
They take advantage of the fact that these works often do not have a significant cost and that is the reason why they are assumed by the tenant, although in these cases they must request reimbursement.
We have had many cases and we always advise the same: make a request to the owner reporting the poor condition or need for repair and inviting him to verify it by his presence in the home, proposing that he directly take care of the repair or the client at the expense of the owner.
A piece of advice we always give is not to link the non-recognition by the landlord of this right with the obligation on the part of the tenant to pay the rent, as they are two different obligations and the Courts do not usually admit the compensation or conditioning of the payment of the rent to the fulfilment of the obligation to repair.
We consider, as does the majority of the Doctrine, that while for the tenant the essential obligation of the contract is the payment of rent, for the owner it is the transfer of possession, and both obligations are fulfilled without the fact of Not agreeing to pay for the work is considered a main obligation as we have said.
As always, there are exceptions and it would be in those cases in which the damages were of such magnitude that they made the home uninhabitable, in which case we understand that the tenant could stop paying the rent or a good part of it as long as this inability to the home would represent an infringement or the fact of not being able to enjoy the home, which as we have already said is the most important obligation of the owner towards the tenant.
A very recent case that we want to highlight because we consider it paradigmatic is the initial claim that we have had to present to a very important developer in Alicante with properties intended for rental, and that is that despite the numerous procedures carried out with it, it has not been possible an agreement with our tenant clients; On the one hand, it happened that after the significant floods on 11/11/22 and due to defects in the construction of the home, a waterspout entered and affected the furniture and belongings of our clients, who informed the insurance company of the owner who only assumed payment of the value of the damaged construction but never the contents or furniture of our clients, arguing that the insurance policy did not cover it.
After negotiations were carried out with the owner of the home, he refused because he understood that the damage had been caused by force majeure but without the existence of responsibility on his part, defending the good condition of the home.
Through the pertinent expert opinion we have demonstrated the existence of defects in the roof of the building that were also maliciously repaired after the rains, undoubtedly to eliminate any evidence of responsibility.
Apart from this claim for compensation for damages, another judicial claim has also been made against him for the repair of existing construction defects in the home that cause leaks when it rains; Well, despite having accredited it and despite the efforts made, they refuse to undertake said works, understanding that they are not within their responsibility as the owner of the home.
On the contrary, as we say in our legal argument, art 21 of the LAU of November 29, requires the owner to make these repairs; For these purposes, it is important to establish 1559.2 of the civil code, which requires that the need for these repair works be made known to the owner, and also important is 1556 of the civil code, which establishes that in the event that the owner does not attend to said repairs, the tenant will have the right to claim damages.
CASES IN WHICH THE AFFECTED PERSON IS THE OWNER
NON-PAYMENT RENT
The primary obligation of the tenant in a lease contract is the payment of the agreed monthly rent. Directly from the casuistry of judicial claims, the largest number of claims that occur are due to non-payment of rent.
This is a very important issue and very briefly to say that in the event that the owner has, even just one month of non-payment, he can claim for breach of contract by the tenant.
It is also important to say, because many people do not know it, that non-payment is not necessary but rather that the mere delay in non-compliance with payment obligations, if done repeatedly, is equivalent to non-payment of rent.
The consequence for the tenant of these breaches is very serious because it gives the tenant the power to resolve the contrary lease through eviction action, and the purpose is to terminate the contract and proceed to evict the tenant.
In this particular case, if the landlord goes to court to file the eviction action, and has not made a prior request called enervation, this will make it easier for the tenant to deposit the money judicially after hearing the legal claim and will produce the so-called enervation, legally considered as the correction of the non-payment, which will produce as a procedural consequence that the legal proceedings will be without effect.
Not with standing the above, even if it is an enervation, it will no longer occur and the tenant would not be able to benefit from this right.
The owner may exercise the eviction action in isolation or in conjunction with the claim for payment of the debt, that is, the rent owed, and if he does so in one way or another, the procedural effects are different, since if he exercises the action of eviction only without claiming the debt, the procedural procedure will be summary, and the only defense that the tenant will be allowed is to prove the payment without being able to allege any other defense issue, so that when summoned by the court, if does not provide documentary evidence of having made the payment, a resolution will be issued immediately agreeing to the eviction.
If, on the other hand, the action to claim the rents owed is carried out cumulatively, the tenant will be allowed to defend himself by any means existing in law.
In these procedures and to finish, we must say that the procedural law assigns them a procedure that if we are not going to say fast, yes one of the fastest, but it must always be taken into account that although the procedural law establishes slight deadlines, many times it is the Courts themselves. with their accumulation of work that slow down and unduly lengthen these judicial processes, but the reader should know that the current regulation of eviction trials has nothing to do with what existed until a few years ago and today a verbal trial eviction can be achieved in a few months with the release of the tenant, something that was impossible before.
The Courts can be very devious when it comes to examining the tenant’s opposition, because they try to avoid fraud and undue extension on the part of the tenant, and it is very important that although the tenant has the right to appeal and so does he, to do so he has to put himself up to date, that is, you have to record all the rent owed, which is a dissuasive measure for the vast majority of tenants who intend to delay the execution of the sentence through procedural resources.
Logically, we will limit ourselves to listing but not developing, and for this, and if you need it, make your consultation with Alicante lawyers Carlos Baño, a professional office where you will be attended to with the greatest rigor and professionalism.
Carlos Baño León, Lawyers in Alicante
We do not want to end this article without mentioning that in our law firm in Alicante we have a great experience in these matters, as well as in going to Court.
If you have any questions, please do not hesitate to contact our experts in real estate law. Carlos Baño León, lawyer in Alicante.
