20 Jan, 2016 @ 19:22
1 min read

Creative law making in Spain

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FLORES: Word-to-the-wise
Antonio Flores
Antonio Flores

THE subtitle of this article infers the existence of a type of residential rental contract that lasts 11 months, no more, no less.

And to a certain extent, if you had just landed in certain parts of Spain and met up with property professionals (real estate agents, mostly) there would be no reason not to believe that an 11-month contract – short term or holiday rental – is distinct from a 1-year-plus long-term contract.

At the same time, there appears to be an informal network of non-legal practitioners who are routinely consulted by people with legal problems and have, by reiteration, created parallel pseudo laws (and even case law) that, quite simply, do not exist in real life.

And, in fact, the 11-month contract is just one ‘legislative creation’ dreamed up by these Costa lawmakers. In other words, a complete fantasy.

The following bullet points explain the current situation with urban rental contracts:

  • There are only two types of urban rental contracts: residential rental contracts and non-residential rental contracts (which include short term/holiday lets, commercial etc.). 

    Duration of residential rental contracts can be freely agreed between the parties. If the agreed term is below 3 years, the contract will be automatically extended on expiration of contract term unless the tenant submits notice of termination of contract with at least 30 days. 

    The above rule is mandatory and cannot be waived by either party by private agreement. 

    Many residential rental contracts are disguised as short term, consequently many short term contracts will be treated as residential by the Courts.

  • The Spanish Supreme Court has stated that, irrespective of the name given to the contract or the term agreed by the parties, if the tenant had a requirement for a habitual and family domicile to take care of his/her permanent and essential needs (and that of the family), the contract will be deemed residential, therefore the 3-year rule will apply.

  • Likewise, the short-term nature of the contract refers not to the duration but to the reason and purpose of occupation of the property, it being determined by its brevity.

  • Means to prove that a short-term contract is, in reality, a residential one are, for example, the tenant(s) having a job wherever he/she lives or is running a company, children’s school enrollment, registration with the Town Hall (‘empadronamiento’) etc.

Antonio Flores (Columnist)

Lawyer Antonio Flores is the legal columnist for the Olive Press. Antonio has been practising law since 1997, year in which he began working for a large law firm in Marbella as a Property Lawyer. In 1998 he left the company he had joined a few months earlier, and used his knowledge and the experience gained to build his own practice. He is known throughout the community as independent, reputable and trustworthy. Through a combination of strong work ethics, determination and international exposure, his competence of Spanish Law is unparalleled and demonstrated through his fluency in English and Spanish.

1 Comment

  1. Unlike EU citizens, Americans with USA passports must meet stringent criteria to be granted retirement visas in Spain. Among other requirements, one must document a MINIMUM annual retirement income of EUR 25,560 + EUR 6,390 for each additional family member. Being granted a retirement visa is much easier, cheaper, and quicker in Portugal, France, Italy, etc. NOW, HERE’S MY QUESTION: If my spouse and I were to be granted a retirement visa in, say, Portugal, would that qualify us as “EU citizens” entitled to stay longer than 90 days at a time in Spain … or would Spain still qualify us based on our USA passports?

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