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1.3. Common costs, Obligation to maintenance, Eviction

Different countries have completely different habits regarding the obligation to keep rented property in perfect condition. In one place it may be the lessee’s duty to paint the property at the beginning or at the end of the contract, while in other places this may be the responsibility of the lessor.

This section therefore looks at responsibilities for property maintenance and also at the common costs incurred in renting residential property in Spain. In addition, we will look at the more practical aspects of eviction proceedings.

We hope you enjoy this latest instalment. In the following articles we will be looking at the subject matter “Buying and selling real estate in Spain”.

If you have any questions or require more information, please do not hesitate to contact us.

Philipp Kirchheim Nils Döhler

Rechtsanwalt & Abogado Rechtsanwalt

phkirchheim@mmmm.es ndoehler@mmmm.es

1.3.1. Common costs

In general, the legal system allows for the possibility that, apart from the rent, the lessee may also be charged for common costs, i.e. general costs and certain other charges on the property such as taxes and other contributions. Thus there exists considerable scope for variations in the provisions of a rental contract.

The above-mentioned general rules concern general expenses which serve to preserve the property in suitable condition and cannot be attributed to one of the parties to the agreement. In addition, specific agreements must be made on this point in the rental contract, indicating the proportional annual part of the whole common costs. Otherwise, all these costs must be paid by the lessor. The general and running costs of the dwelling (water, electricity, gas etc.) are obviously the responsibility of the lessee.

For this reason it is important, as usual in these cases, that arrangements should be stated clearly in the contract and that the “small print“ should be read carefully. It is interesting to note that even if agreements to the contrary have been reached, the tax authorities always have the right to act against the owner, which usually means the lessor. However, the lessor may recover these expenses from the lessee if the appropriate agreements form part of the rental contract.

In the case of extraordinary costs, the lessee does not have to bear them if the contract provides otherwise. These costs, e.g. for a garage construction or other similar projects, are not allocated to general maintenance of the property but simply increase the attractiveness of the dwelling for rental purposes.

1.3.2. Lessee’s maintenance obligations

This leads us directly to the next point, which refers to the lessee’s obligations in matters of maintenance.. The lessor’s obligations to keep the property fit for habitation have already been covered. First of all, it must be stressed that the lessor’s responsibility does not include repair of minor damages resulting from wear and tear. The cost of any repairs which are normally for the account of the lessor, if their purpose is to keep the property fit for habitation, may be claimed from the lessee if he/she is responsible for the damage to be repaired.

In general, the lessee is also liable for any damage caused by other people living in the dwelling or simply using it, even though they are not a party to the rental contract. This means that in principal the lessee can demand the person who caused the damage to pay for it but vis-a-vis the lessor, only the lessee has the ultimate obligation to keep the property in suitable condition. The lessee is also under the obligation to leave the property in the same condition as found at the beginning of the contractual relationship. This is valid irrespective of who was responsible for any individual expenses throughout the term of the contract and for any repairs which were necessary. Other arrangements in the rental contract can also be contemplated in these cases.

In short, the lessee, at his or her own expense, has to carry out any minor repairs which become necessary through normal wear and tear during the term of the tenancy.

Precisely this point is frequently called into question, as the lessor is generally responsible for ensuring that the property is fit for habitation following the natural wear and tear affecting the property over a period of time. Because of the possibility of widely differing forms of provisions in the rental contract on this point, it is especially important to be clear about which of these “minor repairs“ are already predefined as such by the lessor in the contractual arrangements.

This spares one from unpleasant surprises and later conflicts. Who wants to pay for installation costs or damages caused by water pipes? Aside from that, it is important to note that if repairs become necessary, the lessee must notify the lessor of these circumstances as soon as possible, preferably in writing. Otherwise the lessee is, as a general rule, responsible for any resulting damage, as the lessor can allege he was not informed.

1.3.3. Eviction proceedings by the lessor

The question of eviction is an unpopular one, although this should be true for both the lessor and the lessee. Recently there have been changes in this area as a result of legislative measures. These measures should lead to the possibility in the future that, in the event of non-payment of the agreed rent, the lessor can have the lessee evicted considerably more quickly. This sounds as if it only favours the lessor, but according to the legislators, in the end it should help to make renting out a property a more attractive proposition. The effect could be that more rental accommodation would become available in the urban areas where it is so desperately needed.

Currently the jurisdictional process to evict a lessee takes anything up to 16 months, which leads to serious loss of income on the part of the lessor, and for the lessee the accumulating rent arrears also frequently increase the burden of debt. Changes in the regulations for civil law cases, which came into effect at the beginning of 2004, brought about the establishment of “Oficinas de Señalamiento Inmediato“ (OSI) [Señalamiento is the setting of dates for hearings]. This means that in the eviction process certain preliminary bureaucratic tasks can be dealt with quickly, without the exclusive competence of the courts being affected. This leads to earlier court hearings and the quicker granting of eviction notices.

It would certainly be desirable if through the considerable speeding-up of procedures, with the related higher legal protection for the lessor, more properties appear on the rental market, which after all would also benefit lessees. A slackening of the rise in property prices caused above all by property speculation, with up to 20% of housing standing empty in the major cities, could be another result of these measures. The new system of OSI is currently at an experimental stage, which means we must wait for further developments.

In general, the lessee can stop the eviction process only by paying the rent arrears. If a judicial process has already been started, it will come to an end if the lessee deposits the arrears with the court or with a notary before the hearing takes place, or pays off arrears directly. The lessee has this right only once however, and only when it can be proved that not less than 2 months before the institution of proceedings, the lessor was unsuccessful in demanding payment of the lessee, after having served the appropriate warning.