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1.2 Regulations for Protection of Lessee

The regulations which protect the rights of the lessee are inalterable, as far as residential rentals are concerned. That means that something different can be agreed on in a contract but that any contractual conditions that are disadvantageous to the tenant compared with the legally-established regulations have no legal basis and are simply ineffective.

In the case of commercial contracts and therefore often also with leases most protective regulations can be altered..

1.2.1 Guarantees, Repairs, Reduction in rental payments

In relation to the obligation to maintenance, the following applies:

The lessee has in principal no automatic right to reduce the rental payment in case of defects in the property (unlike in Germany for example). Lessees do have the right to the removal of the defect which should be reported to the lessor. In this regard, the lessor is obliged to carry out all repairs necessary to maintain the habitability of a property.

Special regulations are conceivable when it isa serious defect, such as a health risk.. In such an exceptional case the lessee may act him/herself, after first notifying the lessor, and demand immediate payment of the sum of money that will be required (with written estimates) from the lessor.

The right to a reduction in rent does exist as an exception when part of the dwelling is unusable for a considerable length of time, for example if the lessor is having building work carried out in order to fulfil the duty to maintain the property.

Other regulations exist for so-called voluntary improvements (mejoras), which the lessor arranges to have carried out and which must be communicated with sufficient notice. In these cases the lessee has a right to reduction in rent. In general the lessee may not do any work in the dwelling without receiving express authorisation from the lessor. Usually it is agreed that any improvements that the lessee has made him/herself or has had carried out will remain in the property at the end of the rental period without the lessor having to compensate the lessee. It is not normal in Spain to name another lessee as successor and to obtain compensation fom that person for improvements made by the previous lessee. However all these points can be arranged with the lessor, ideally before signing the rental contract.

Finally, it should be noted that building work carried out by the lessee without the permission of the lessor can constitute grounds for termination of contract on the part of the lessor. Permission should therefore always be obtained.in advance.

1.2.2. Lessee's preferential right-to-buy

In relation to the lessee’s preferential right-to-buy, the owner must communicate his intention to sell and also show the conditions of the sales contract. The lessee then has 30 days in which to exercise the right to buy. Should the owner dispose of the property within 180 days under conditions other than those notified , the notice loses its validity and a new notice must be produced. If both contractual and legal preferential right-to-buy co-exist, the contractual right takes preference only if it was already registered in the rental document at the Registro de la Propiedad. A contractual renunciation of the legally-established preferential right-to-buy is only possible with contracts of more than 5 years duration.

A right to take over an existing rental contract (until the date of termination of said contract) exists for the heirs of the lessor, for the spouse or partner, direct family (parents and children), siblings and the handicapped. However these people must have been living in the property before the death of the lessee. In the case of sale of the property, the purchaser takes the place of the original lessor in the rental relationship until the end of the contract or the minimum duration for rental..

1.2.3 Dissolution of contract and termination of rental contract

An ordinary termination by the lessee with contracts of a duration of over 5 years is with a period of notice of two months. Rights to extraordinary termination exist, for example when the lessor does not carry out necessary repairs or if the lessor causes severe disturbance to the dwelling or its occupants.

In the case of rental contracts for residential purposes subletting and transfer is forbidden without the written permission of the lessor. These are grounds for termination of contract. In addition the lessor can also terminate the contract extraordinarily in the case of: non-payment of rent; unauthorised subletting; willful damage to the property; or when ceases to be used primarily for residential purposes.