The six-month extension for rents included in the decree approved by the Government on March 31 collides but does not violate the provisions of the Urban Leasing Law (LAU) and does not prevent the owner from recovering their home in case of need.
The royal decree of economic measures was intended to help the most vulnerable groups due to the crisis triggered by the coronavirus pandemic, such as SMEs, the self-employed and the unemployed.
These measures include the extension for six months of rental contracts that expire up to two months after the end of the state of alarm, a measure against which some voices have been raised, such as that of the Rental Negotiating Agency (ANA), which ensures that it is contrary to the legal system and violates the LAU.
Its general director, José Ramón Zurdo, explains that “by approving an automatic six-month extension, the right of the owner, if necessary, to recover his home is being violated.”
The measures, adds José Ramón Zurdo, are focused on alleviating the situations of need or vulnerability of the tenants, but “they do not directly attend to those of the private owners”, which can ultimately provoke a barrage of judicial proceedings.
But experts and lawyers specialized in the real estate sector consulted by Efe rule out that in practice this abandonment of the owners occurs, fundamentally because the LAU is a norm of greater rank than the decree.
The LAU establishes that “the compulsory extension of the contract will not proceed if, after the first year of its duration, the lessor communicates to the lessee that he is in need of the dwelling”, provided that he communicates it two months before the contract expires and that said clause is contained therein.
And in the decree of March 31, it is specified that, upon request of the lessee, an extraordinary extension of the term of the lease may be applied for a maximum period of six months, which must be accepted by the lessor, unless other terms are set or conditions by agreement between the parties.
Santiago Viciano, managing partner of Lean Abogados, believes that the key lies in determining which rule prevails, and in his opinion it is the LAU, because the owner’s right is legally more sustainable; It also highlights that the wording of the decree says that the owner “must” accept, which does not mean that such acceptance is automatic.
The normal thing is to reach an agreement, but if it is not possible then the judicial route remains, something that in the present case does not make sense because the owner must notify the tenant two months in advance if he wants the property, and the extension is six, with which of the six already consumed two.
Thereafter, the judicial process is not likely to be resolved before that time.
Another thing is if the tenant decides to stop paying and becomes a squatter, whose eviction, in the case of small owners – those who have less than 10 rental homes or less than 1,500 square meters – but not in the case of large ones, has been maintained as a matter of urgency.
In the same sense, the specialist lawyer in real estate law of Sanahuja Abogados Ignasi Vives appeals to common sense and the need to reach an agreement before going to court.
In principle, the logical thing is that the judge of the reason to the owner, but for practical purposes it does not make sense to initiate a judicial procedure because the LAU forces to notify the tenant two months in advance – in addition to the fact that such possibility must appear as a clause in the contract-, with which between those two months and what a judicial process takes, the six of the extension are already consumed.
The vice president of FIABCI, the largest association of real estate agents in Spain, Eva González-Nebreda, points out that the decree literally says that the lessee may request the extension, and the lessor may accept “or not”, but in no case is it an automatic procedure.
For her part, the head of Legal Advice of the Association of Real Estate Agents of Catalonia and the Official College of Real Estate Agents of Barcelona, Montserrat Junyent, points to the “spirit of the law”, and stresses that the decree aims “not neglecting people with difficulties, but in no way that the owner loses his home. “
There is always the possibility of going to court, but given the slow pace of the judicial system, six months “is nothing,” adds Junyent, and even less after the judicial halt of the last two months.