One of the issues that raises most concern when renting a property, whether from the point of view of the landlord or the tenant, is how to address a situation where the tenant unilaterally decides to terminate the lease agreement early. In other words, when the tenant decides to vacate the property and therefore ceases to pay the agreed rent, before the end of the agreed term of rent.
Needless to say, conflicts of interests arise from these kind of situations where on one hand the tenant decides to withdraw from the agreement early and unilaterally (as we will explain later, there is no obligation to justify termination of contract, it is only necessary to comply with a series of requirements established by law), and on the other hand the landlord faces hindered income prospects until finalisation of the term of contract.
In this blog we will explore how Spanish regulations provide for these kind of situations, the rights that both the tenant and the landlord have, and if applicable, how much compensation the landlord could claim if the tenant unilaterally opts for early termination of the lease agreement.
Current regulations on property leasing are contained in Law 24/94 on Urban Leases, and specifically the civil case law that we will explain here is regulated by art. 11 (amended by Law 4/2013), which establishes that the tenant may freely withdraw from the lease agreement provided that a series of specific requirements are met, additionally the parties may agree that the landlord shall receive compensation due to hindered contractual prospects.
Specifically the Law stipulates that:
“The tenant may withdraw from the lease agreement once a period of six months has elapsed, provided that the landlord is notified at least thirty days in advance. The parties may stipulate in the contract that in the event of withdrawal, the tenant shall compensate the landlord for the amount equivalent to a monthly rental payment for each remaining year of the agreed term of contract. For terms under one year the proportional amount of compensation shall be payable”.
This redrafting permits the tenant to unilaterally terminate the lease agreement, provided that a series of specific requirements are met, which are set forth below:
- At least six months must have elapsed since the signing of the tenancy contract
- The tenant is required to give notice of the decision to withdraw from the contract, at least one month in advance. Such notification shall be served via reliable means (Registered fax, notarial deed, email, provided that the means of notification is contemplated in the contract)
- If the rental term agreed is longer than one year, the tenant shall pay a maximum amount of compensation equivalent to a monthly rental payment for each remaining year of the agreed term of contract
- In order to request termination of contract, the tenant is not required to provide proof of just cause, or unexpected circumstances due to the economic crisis, or personal reasons, given that the only requirement is to serve formal notification, without prejudice, where applicable, to payment of compensation to the landlord.
Drafting lease contract content is vitally important when establishing the amount of compensation applicable in the case of early termination. For example, not expressly stipulating in the contract that the compensation payable shall be the amount equivalent to a monthly rental payment, implies that there shall be no penalisation for any amount. This is due to the fact that the Law provides for this right as an option, and if not expressly stipulated in the contract, the correct interpretation is that there shall be NO penalisation (provided that the tenant complies with the legal requirements; giving notice 30 days in advance, and as long as at least six months must have elapsed since the signing of the tenancy contract).
As we have stated previously, the current regulations entered into force on the 6th June 2013, therefore, lease contracts signed previous to that date shall be dealt with in a different manner.
In order to protect your interests, as always, we strongly advise you to seek the assistance of a lawyer with expertise in the field of Property Law when negotiating, preparing and drawing up the lease contract, whether you are the tenant or the landlord. At MSG LEGAL we are at your disposal to resolve any doubts you may have regarding renting a dwelling (long term or holiday renting), business premises or any other matter regarding property rental on the Costa Blanca.
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice.