Decree 20/2002: Andalusia’s Holiday Rural Rental Decree

Raymundo Larraín Nesbitt, April, 8. 2016

As foreign buyers return to Spain in increasing numbers, some will be tempted by the dream of a rural idyll in the Spanish countryside, where some of the most beautiful scenery in Europe can be found. However, the risks of buying in a rural environment are significantly higher than in consolidated urban areas. Regular legal-contributor Raymundo Larraín Nesbitt explains.

Photo credit: Spanish Property Insight

By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
8th of April 2016

 

Introduction

As a result of publishing last month’s article on Holiday Rentals Laws in Andalusia (Decree 28/2016), which applies only to residential properties, I got asked to write up something on rural holiday rentals in Andalusia.

Decree 20/2002 is in fact a fourteen-year-old law so rural landlords should not be going overboard over it regarding fines for non-compliance. I stress I am not advocating for non-compliance, merely observing that this law was passed well over a decade now.

Due to the sheer length of this decree, this article is by no means exhaustive. In fact I have greatly abridged the decree focusing only on the points that will interest the vast majority of rural landlords. It is advisable landlords get hold of their own translated copies of this long decree as I will not be analyzing all the minutiae as it interests only a minority of people (specifically Annex III dealing with rural houses which goes into a wild level of detail on the requirements one must comply with i.e. size of toilets).

Andalusia’s Holiday Rural Rental Decree

 

Andalusia approved on the 29th of January 2002 this decree (sic). Andalusia’s Holiday Rental Law was officially published in the BOJA on the 2nd of February of the same year. This decree has been amended several times over the last decade by numerous laws. The most up-to-date version is this one which reflects all the legal changes:

Decreto 20/2002

The official name is Decree 20/2002, de Turismo en el Medio Rural y Turismo Activo.

This includes the following types of rural property:

• viviendas turísticas de alojamiento rural (better known by its acronym VTAR).
• casas rurales.
• complejos turísticos rurales.

The best way to go about it is simply analysing point by point what it establishes.

Obligation to Register your Rural Property for Rental Purposes

In compliance with this Decree, and with Law 13/2011, of Tourism in Andalusia, landlords need to register before Andalusia’s Tourist Registry (or ATR going forward).

You can download and fill in the form supplied by the ATR called ‘Declaración Responsable‘ and hand it over at one of the ‘Delegaciones Territoriales de Turismo’ once completed. Registration is free unlike in other regions of Spain. More details on registration in a section further below titled ‘How to Register your Holiday Rental in Andalusia’.

If your command of Spanish is low, you can hire a lawyer to do this on your behalf in exchange of a reasonable fee.

Excluded Properties

The following properties are excluded from being regulated by Decree 20/2002:

• Properties which are lent to friends or family without an exchange of money (free).
• Properties that are let to the same individual for a continuous period of time exceeding two months. In which case it will be regarded as a standard rental agreement subject to Spain’s Tenancy Act. More details in my in-depth article: Spain’s Tenancy Act (LAU).
• Residential properties, located in what is legally classified as urban land, are expressly excluded as they are subject to their own legislation: Decree 28/2016. You can find more details in my in-depth article: Holiday Rental Laws in Andalusia (Decree 28/2016).
• Apartamentos Turísticos which are ruled by Decree 194/2010.
• Villages with a population census over 20,000 will not be considered rural for the purpose of this decree.

Holiday Rural Rentals: Definition

Article 9 defines them. They will comply with the following three points:

• To have the appropriate architectonic rural characteristics of the region they are located in.
• To be integrated with the natural surroundings.
• To meet the minimum requirements set out in this Decree for each rural type available.

Types of Rural Lodgements

• Rural houses (casas rurales).
• Rural hotel lodgments and rural tourist rentals (establecimientos hoteleros y apartamentos turísticos rurales).
• Rural tourist resorts (complejos turísticos rurales).
• Other.

ANNEX I: Specialization of Rural Properties

 

Rural properties can be classified in different groups depending on their specialization:

• Agro tourism. Exploitation of agricultural and livestock resort which lodgers can participate in its activities.
• Rural hostel. Devised for short-term to explore and enjoy the rural surroundings and nature. It will have kitchens for the use of lodgers besides being able to offer its own food catering. Rooms for up to three people will be allowed in bunk beds. A ratio of one toilet for every 7 lodgers.
• Nature classes. Thought to educate tourists on Nature’s ways. Group orientated.
• Forest housing. Linked to the exploitation of forests, mountains, lakes and water related natural resources.
• Mill.
• Cave house.
• Huts. Wood or straw thatched dwellings.
• Cortijo house. Used to exploit the surrounding fields i.e. plantation.
• Farm school.
• Hacienda. A more complex and larger structure than a cortijo i.e. olive plantation
• Refugio. Structure devised for mountain hikers to dwell in a few nights in hard to reach locations in the wilderness.
• Other. This includes all rural property that do not qualify for one of the previous categories.

 

ANNEX II: Mandatory Minimum Structural Requirements of Rural Lodgings

 

• Access to wheeled vehicles must be enabled with visible signposts. Brochures with directions on how to get there must be supplied to tourists. If the landlord cannot do this he must provide himself the means of transport to and from the lodging premises.
• Drinkable water. Not inferior to 200 litres per lodger if not connected to the mains grid.
• Electric energy.
• Fully stocked first aid kit.

Rental Types

 

As mentioned in the article’s introduction I will skip whole sections of the Decree and focus only on the two typical rural properties rented out by expat landlords.

1. Rural Houses (casas rurales)

• Independent structures.
• No more than three dwellings within the same building as a limit.
• No more than 20 lodgers allowed at any time.
• They will be classified in two categories: basic and superior. Superior has obviously more stringent requirements to meet.

Annex III holds a full list of requirements rural houses must meet to be rented out legally. For reasons of space I will not be including it. It is strongly advised that landlords download Annex III and have it fully translated. Annex III can be found in pages 21 to 24 of this PDF link: Decreto 20/2002.

2. Rural Rentals (viviendas turísticas de alojamiento rural or better known by its acronym VTAR)

• Architectonically independent stuctures such as labour house, tool huts, barns, cowsheds, stables etc.
• Offered to the public in general to be rented one or more times a year on a short-term basis.
• To offer strictly only lodging services (not additional services such as restaurant facilities or daily change of laundry and bed linen)
• No more than three dwellings allowed in the same building.
• Maximum of twenty vacancies offered.
• To be adequately furnished.
• The lodging cannot exceed 3 months within a calendar year.

Registration Form

• All lodgers, not just the one making the reservation, will be fully identified in compliance with current Security laws (popularly dubbed as ‘Gag’ Law). Lodgers will supply a copy of their personal ID/passport. Like in hotels, all guests will be required to fill in and sign a registration form on entry. In compliance with art 7.2 this registration form must be then sent to the Police or Guardia Civil for every guest over the age of 16 years old within the next 24 hours of the accommodation following Security Laws from 2003 (Orden INT/1922/2003, de 3 de julio, sobre libros-registro) and from 2015. You can send a copy of the filled in and signed registration form personally, by fax or else by e-mail. Registration forms are standardized by law; click here for a sample copy.
• Online registration: follow this link to submit by e-mail to the Guardia Civil a copy of your completed Registration Form.
• Registration forms must be stored by landlords for a period of up to three years for the inspection of the Security Forces.

How to register your Rural Holiday Rental in Andalucía – Inscription before Andalusia’s Tourism Registry (ATR)

All landlords that wish to rent out their rural properties in Andalusia must register their property before the ATR prior to offering and advertising rentals or else face being fined for clandestine activity.

You can self-register here:

Enrolment at Andalusia’s Tourism Registry.

Download, print and fill in the form supplied by the ATR called ‘Declaración Responsable para el acceso o ejercicio de la actividad’; specifically the annex on page 7. Once done, hand it over physically at one of the ‘Delegaciones Territoriales de Turismo’ in the region where your property is located. It can also be completed online if you have a digital certificate enabled. Unlike in other regions of Spain registration is free in Andalusia. You can find a translated version of the form in English here.

• Complete the Declaración Responsable meeting the requirements outlined above in Annex II & III depending on your rural property type.
• Passport copy of landlord and/or NIE number will be required.
• Property details, cadastral reference, number of potential guests. Supply copy of last IBI receipt that mentions ten cadastral number. More on IBI tax in my article Non-Resident Taxes in Spain.
• Landlord’s personal details and an address for official notifications.
• Details of management agency or designated person if landlord appoints someone to act on his behalf. Any change in details must be communicated so the ATR remains accurate at all times.
• Dates on when the rural rental facility is set to open.
• Mandatory insurance policies (if applicable).
• Details of this inscription will be passed on to the local town hall.

Fines and Sanctions

They are divided into three categories:

a.- Light offence. Can be either a written warning or a sanction with fines up to €2,000.
b.- Serious offence. Sanctioned with fines ranging from €2,001 up to €18,000. The premises may be shut down temporarily at the authority’s discretion (for periods less than 6 months), the rental licence may be revoked temporarily.
c.- Very serious offence. Sanctioned with fines ranging from €18,001 up to €150,000. The premises may be shut down temporarily at the authority’s discretion (for periods spanning between 6 months to 3 years), the rental licence may be revoked indefinitely.

Clandestine Activity

If the Authorities (La Junta) catch you red-handed renting out a rural non-declared property (that is not registered at the ATR) this may be regarded as a serious offence.

Conclusion

If you own rural property in the region of Andalusia, and plan to rent it out as a tourist accommodation, make sure your property is first registered before the ATR. And to close, do not forget to declare and pay tax in Spain on your rural rental income (you can read my article Non-Resident Taxes in Spain for more information on your tax liabilities as landlord).

 

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Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

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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. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.016 © Raymundo Larraín Nesbitt. All rights reserved.

 

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Andalusia tourist licence registration - Holiday Rental Laws (Decree 28/2016)

Raymundo Larraín Nesbitt, February, 8. 2016

Lawyer Raymundo Larraín Nesbitt explains the new regulations governing holiday rentals just introduced in Andalusia. He gives us an overview of the Decree in force, the requirements landlords must meet, how to register your holiday rental in Andalucia and explains the steep sanctions for non-compliance.

Register through us in only 24 hours: Registration of Holiday Homes (Andalusia)

Marbella-based Larrain Nesbitt Lawyers has over 16 year’s taxation & conveyancing experience at your service. Our team of native English-speaking lawyers and economists have a long track record successfully assisting expats all over Spain. You can review here our client’s testimonials.

By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
8th of February 2016

 

Introduction

Since 2013 I have highlighted the ongoing trend in all regions of Spain to pass legislation on private holiday rentals:

• New Measures to Bolster Spain’s Ailing Rental Market
• Holiday Rental Laws in Spain

Anyone who has read my articles here will know I am not in favour of these tourist rental laws because they have not been drafted with consumer’s best interests in mind, but rather with those of the hotel industry that fought tooth and nail to regulate this sector, and thwart what they call “unfair competition”.

Spanish politicians, and particularly those in Andalusia, have taken a string of controversial decisions in the last few years in the face of an anemic post-crisis recovery (i.e. the infamous worldwide asset declaration requirement (Model 720), stringent regional Holiday Rental Laws in various Spanish regions, the empty home expropriation decree for ‘social reasons’, a disappointing ‘Golden Visa’ residency investor scheme, draconian anti-money laundering laws etc.). These laws are proving to be highly unpopular with expatriates to the point of driving many away. Unsurprisingly many town halls are reporting of late that foreign population has taken a sharp dip in their census over the last few years (for example, the Marina Alta region of Valencia has lost a third of its foreign population). Maybe some expats have chosen to live under the radar to avoid complying with Tax Model 720 worldwide asset declaration, others have simply had enough and packed their things and gone back to their home country.

If Spain had truly a modern diversified economy these unpopular laws wouldn’t be such a big deal after all, and we could shrug it off. But the sad fact is that Spain’s GDP is unhealthily over-reliant on the Tourism and Construction sectors (over 20%), and this fact, coupled with huge unemployment levels that reach alarming all-time highs in Andalusia, make for a bleak picture. Perhaps regional politicians would do well to ponder carefully on the far-reaching consequences of decisions taken on the hoof. In my humble opinion there are many countries out there that are doing a sterling job at attracting foreign investments by adopting superb fiscal measures (chiefly Portugal). Spain should take a good hard look at itself and abandon its self-complacent attitude and start embracing competitive measures that would renew the market’s interest (especially amongst British, traditionally our largest market by far). Spain has all the makings to become the hotspot; all it requires is competent down-to-earth politicians passing tax-friendly laws that attract foreign investments. Is this too much to hope for?

In February 2016, after a long struggle, Andalusia finally passed its own regional holiday rental law in the wake of much upheaval. This article serves as a gentle reminder on this new law to all those landlords who are currently letting out property in the region of Andalusia or intend to in the near future. I strongly advise to heed the guidance I provide below and not to ignore this new piece of legislation. The fines for non-compliance are very steep (ranging from £1,500 to £115,000).

Anyone who thinks the Junta de Andalucía will not hound infractors and fine them harshly is deluding himself. The whole purpose of this legislation was geared from the outstart towards sanctioning offenders as those behind it had an axe to grind. Moreover in other parts of Spain town halls are already levying substantial amounts on the back of similar new laws. They are using new technology (‘web crawlers’) that methodically and relentlessly trawl internet to come up with non-regulated rentals that are advertised over the web. Authorities cross-reference this information against their public records and unregistered properties are brought to light as a result. Not to mention that at a time where Administration’s coffers are bereft post-crisis this represents a golden opportunity to hunt, apologies, I meant raise taxes and prop up politicians’ dwindling coffers (because gold statues and palaces don’t pay for themselves you know). God bless them all.

In Barcelona, for example, in two unrelated recent cases they have levied fines of £24,000 (source) and £70,000 on the same token (source).

A positive side effect of this law will be to bring into the open all the undeclared tourist rentals. So if after reading my article you become a law-abiding citizen registering your properties to rent them out as tourist accommodations make sure you are filing and paying your Non-Resident Taxes in Spain as well! It would be a faux pas to register them and not declare and pay tax on your rental income in Spain. EDIT 11th April: newspaper article from El País:  Taxman turns attention to hidden internet property rentals.

Let this article act as a stern warning to all landlords in Andalusia: The Taxman Cometh!

 

Andalusia’s Holiday Rental Decree

 

Andalusia approved on the 3rd of February this new decree which had sparked much controversy and debate. The final version has dropped some of the more contentious points but still retains many which are highly questionable in my humble opinion. Andalusia’s Holiday Rental Law was officially published in the BOJA on the 11th of February. Link to the new law:

Andalusia’s Holiday Rental Law.

The official name is Decree 28/2016, of 2nd of February of Tourist Holiday Rentals (viviendas con fines turísticos). The best way to go around it is simply analysing point by point what it establishes.

Obligation to Register your Property: as from the 11th of May 2016

In compliance with this Decree, and with Law 13/2011, of Tourism in Andalusia, landlords may register as from the 11th of May 2016 onwards, day on which this new Decree will come into force. Mr. Rafael Salas Gallego, Malaga’s Tourism Director, has confirmed the registry will not be operative before the 11th of May. So landlords now have a three-month deadline to gather all their paperwork and may start registering themselves as from the 11th of May onwards before Andalusia’s Tourist Registry (or ATR going forward). The Junta de Andalucía has promised public awareness campaigns to clarify on this new law.

You can download and fill in the form supplied by the ATR called ‘Declaración Responsable’ and hand it over at one of the ‘Delegaciones Territoriales de Turismo‘ once completed. Registration is free unlike in other regions of Spain.

If your command of Spanish is low, you can hire a lawyer to do this on your behalf in exchange of a reasonable fee.

Excluded Properties

The following properties are excluded from being regulated by this decree:

• Properties which are lent to friends or family without an exchange of money (free).
• Properties that are let to the same individual for a continuous period of time exceeding two months. In which case it will be regarded as a standard rental agreement subject to Spain’s Tenancy Act. More details in my in-depth article: Spain’s Tenancy Act (LAU).
• Rural properties, located in what is legally classified as rural land, are expressly excluded as they are subject to their own legislation: Decree 20/2002. I have covered this in an in-depth article: Andalusia’s Holiday Rural Rentals.
• Landlords, or property management companies, that own or rent three or more properties, personally or through corporate structures, each located within a radius of 1 km from the reception office in the same unit (i.e. building, urbanization, condominium) will be excluded from this new decree (this is very bad news). They will be subject to the much harsher Decree 194/2010 (Apartamentos Turísticos) which basically equates these properties to a hotel. This has very serious restrictions on use i.e. landlords cannot use the property themselves for more than two months a year, they must cede the management of the units to a professional company for a minimum period of ten years etc.

Definition of Holiday Rental – What Properties are Included

The decree is rather vague on this point. Any property that complies with the following points will fall under the remit of this new regulation:

• The property is located in land classified as ‘residential’ (in other words, rural and tertiary land are excluded as they are each subject to their own legislation on rentals).
• The property is rented out to tourists regularly on a short-term basis (days, weeks, months).
• Reservation system is enabled. Reservations can be made.
• The property will be regarded to be rented out touristically when the landlord advertises it using specialized media. By specialized media it is understood companies who intermediate between landlord and tenant in exchange of a commission such as: travel agencies, real estate agencies, holiday rental websites (i.e. Airbnb, HomeAway, Tripping, Tripadvisor, Flipkey, VRBO etc.).

Examples of Private Holiday Rentals

All the following landlords fall under the remit of this new law and must comply with its terms or face hefty fines.

1. Mr. Raistlin Majere, and loving wife Claire, own a duplex in a beachside urbanization in Estepona and rent their property out three months a year advertising through HomeAway and similar niche websites.
2. Mr. Aedan Cousland owns a luxury villa in Benahavis, Marbella, which he rents out to affluent Arabs only during the summer season for a substantial return. He advertises only through upscale real estate agencies.
3. Mrs. Morrigan Flemeth and husband Alistair own and live in a Guest House in Fuengirola renting out rooms to tourists all year round. They advertise over internet.
4. Mr. Loghain McTir, UK resident, owns and rents three high-end properties through a management agency. Two of the properties are located frontline in Puerto Banús and the third one in the prestigious Sierra Blanca estate.

Rental Types

Properties can be let as a whole or else by rooms (like in a Guest House).

If it’s the whole property that is being rented out, no more than 15 lodgers will be allowed simultaneously at any time (think of a large villa).

If the property is being rented out by rooms, it is mandatory the landlord lives in the property himself. No more than 6 vacancies can be offered and each individual room cannot exceed four lodgers.

Lodging Requirements

Some requirements from the draft decree have been dropped i.e. wi-fi; which is now a moot point as it is no longer required.

• The property must have attained what is known as a Licence of First Occupation (LFO, for short). It is also known in some parts of Spain as First Occupancy Licence, Habitation Certificate, Habitation Licence, Licencia de Primera Ocupación, Cédula de Primera Habitabilidad, Cédula de Habitabilidad or Cédula de Ocupación. A LFO is a licence issued by the town hall (ayuntamiento) once the building works have been completed, which allows the purchaser to dwell in the property legally. The property developer is responsible for applying for this licence, once the Certificate of End of Construction has been issued. It ensures the property is above board complying with all planning, health & safety and disabled access laws both at a national and regional level. It is also very important as it is required by utility companies to supply the property with water, electricity, gas and telephone connection.
• Rooms must be ventilated and have blinds or shutters to obscure them when necessary.
• Rooms will have the appropriate furniture required for use by lodgers and in proportion to the number of lodgers per room.
• Air conditioning unit affixed in every bedroom including living room (as a fixed fixture, not as a portable device unit) when the property is offered between the months of May and September (inclusive). Landlords will be given one year to adapt the rooms to this requirement as from the time this law is passed (11th of May 2017).
• When properties are let during the winter season (October through to April, inclusive) a heater must be made available in every bedroom including living room (as a fixed fixture, not as a portable device). Landlords will be given one year to adapt the rooms to this requirement as from the time this law is passed (11th of May 2017).
• First aid kit.
• Landlord must provide physical or electronic brochures of the closest amenities, medical treatment facilities, parking spaces, restaurants, shopping centres as well as plans that detail use of urban transport, map of the surrounding area and general tourist guides.
• A complaints book will be made available as well as installing a large visible sign informing lodgers that a complaint book is available. Sample complaints form click here.
• Mandatory cleaning service at the start and end of every new accommodation.
• Clean sheets and bed linen as well as supplying a spare set.
• Provide lodgers with a working contact phone number of person to be held accountable for any complaint or query raised so the situation is addressed immediately.
• Provide instruction booklets to use household and kitchen appliances.
• Inform lodgers on property use restrictions (such as no smoking areas or pet restrictions) as well as on Community of Owners internal bylaws.

Holiday Rental Agreement & Registration Form

i. Holiday Rental Agreement

• It will have the details of the landlord, including a working telephone number as outlined in the previous section above to address complaints, the property’s unique alphanumeric code on being registered at the Junta de Andalucia, the reservation dates (arrival and departure dates), numbers of lodgers and total price of the holiday rental.
• If the agreement does not specify it, it is presumed the rental starts at 16.00 and ends at 12.00pm.
• The landlord, or person designated by him, will show the lodgers around explaining how the kitchen and household appliances work as well as providing them with security cards and access codes to the premises. If the tourist accommodation is included in what is known as a Community of Owners, the landlord must supply his guest a copy of the internal bylaws ruling the community so he adheres to them during his lodging.
• A copy of the signed Holiday Rental Agreement will be stored by the landlord for up to one year to provide it for inspection by the relevant Authorities.

ii. Registration Form

• All lodgers, not just the one making the reservation, will be fully identified in compliance with current Security laws (popularly dubbed as ‘Gag’ Law). Lodgers will supply a copy of their personal ID/passport. Like in hotels, all guests will be required to fill in and sign a registration form on entry. In compliance with art 7.2 this registration form must be then sent to the Police or Guardia Civil for every guest over the age of 16 years old within the next 24 hours of the accommodation following Security Laws from 2003 (Orden INT/1922/2003, de 3 de julio, sobre libros-registro) and from 2015. You can send a copy of the filled in and signed registration form personally, by fax or else by e-mail. Registration forms are standardized by law; click here for a sample copy.
• Online registration: follow this link to submit by e-mail to the Guardia Civil a copy of your completed Registration Form. Alternatively you can also use this other link (scroll down for the links).
• Registration forms must be stored by landlords for a period of up to three years for the inspection of the Security Forces.

Price and Reservation

• Price offered will be per night and all-inclusive. This means it must include all the following: utility consumption (water, electricity, heating, A/C), cleaning of (bed)room at the start and end of every new lodging, clean bed linen, taxes. The bill will give a detailed breakdown of all expenses including any extras requested by the guest (like in hotels).
• It is compulsory for a landlord, or person designated by him, to hand invoices to a guest for every payment made including the initial reservation fee (even if it is just for one night’s accommodation).

Following article 8.2, and for the avoidance of doubt, landlords can decide freely upon the rental terms on the following points (so long as the tenant agrees): price, bookings, reservation deposit and cancellations.

If a landlord does NOT word these terms in a short-term tenancy agreement then by default the following rules will apply:

• Unless agreed otherwise, the maximum reservation fee is 30% of the total price.
• If cancellation of the reserve is done over ten days in advance the landlord can pocket 50% of the reservation fee in compensation.
• If the cancellation is done under 10 days then the landlord is entitled to pocket the full amount of the reservation fee.
• If it’s the landlord that cancels he may do so without penalty over ten days in advance.
• If the landlord cancels under ten days he must pay a compensation to his guest of 30% of the final agreed total price.
• If the cancellation is due to a force majeure, then both landlord and guest are exempt of awarding compensation. Examples of such admitted by law courts are flash floods, earthquakes, strong winds, general strikes.

How to register your holiday rental in Andalucia – Inscription before Andalusia’s Tourism Registry (ATR)

All landlords that wish to rent out their properties in Andalusia must register their property before the ATR.

You can self-register here (as from the 11th of May 2.016 onwards):

Enrolment at Andalusia’s Tourism Registry.

Download, print and fill in the form supplied by the ATR called ‘Declaración Responsable para el acceso o ejercicio de la actividad‘; specifically the annex on page 7. Once done, hand it over physically at one of the ‘Delegaciones Territoriales de Turismo‘ in the region where your property is located. It can also be completed online if you have a digital certificate enabled. Unlike in other regions of Spain registration is free in Andalusia.

You will need to supply the following details:

• Property details, cadastral reference, number of potential guests according to its Licence of First Occupation.
• Landlord’s personal details and an address for official notifications.
• Details of management agency or designated person if landlord appoints someone to act on his behalf. Any change in details must be communicated so the ATR remains accurate at all times.
• Details of this inscription will be passed on to the local town hall.
• Once the property is duly registered before the ATR each dwelling will be assigned a unique alphanumeric code which – by law – must appear in all publicity offering the property to let (art. 9.4) i.e. internet webs, estate agency brochures, glossy magazine rental advertisements etc.

You will then be assigned a unique alphanumeric code i.e. VFT/MA/00001.

It goes without saying that any property let in Andalusia that does not sport said unique ATR code will be easy to spot and may result in heavy fines.

Fines and Sanctions

They are divided into three categories:

a.- Light offence. Can be either a written warning or a sanction with fines up to €2,000.
b.- Serious offence. Sanctioned with fines ranging from €2,001 up to €18,000. The premises may be shut down temporarily at the authority’s discretion (for periods less than 6 months), the rental licence may be revoked temporarily.
c.- Very serious offence. Sanctioned with fines ranging from €18,001 up to €150,000. The premises may be shut down temporarily at the authority’s discretion (for periods spanning between 6 months to 3 years), the rental licence may be revoked indefinitely.

If the landlord is sanctioned two or more times for very serious offences within a three-year period, the property will be struck off the ATR indefinitely.

Statutory Limitation of Sanctions

• Light offences: six months.
• Serious offences: one year.
• Very serious offences: two years.

The statutory limitation starts as from the time the sanction is imposed by the Administration. The time can be interrupted by the initiation of legal proceedings. If the administrative procedure is paralyzed for more than one month for reasons unrelated to the offender, the statutory limitation will be renewed once again (eventually time-barring the sanction).

Clandestine Activity

If the Authorities catch you red-handed renting out a non-declared property (that is not registered at the ATR) this will be regarded as a serious offence attracting fines ranging from £1,500 up to £14,000.

Conclusion

If you own property in the region of Andalusia and plan to rent it out as a tourist accommodation make sure your property is first registered before the ATR. Do not chance it thinking they won’t catch you as one of the requirements to advertise rentals is to publish the unique alphanumeric code supplied by the ATR in all advertisements (article 9.4). Any offering made going forward that lacks said ATR code and you will be done for. Let alone the unbridled use of web crawlers to hound non-compliers which is proving most effective.

Bottom line, always be on the right side of the law. Hire a lawyer to ensure your property is registered to let and fully compliant with all the minutiae. Ensure you acquire all the gadgets the Andalusian law requires for each room listed above (A/C units, first aid kits etc) to avoid sizeable fines. And to close, do not forget to declare and pay tax in Spain on your rental income (you can read my article Non-Resident Taxes in Spain for more information on your tax liabilities as landlord).

“Politics: the art of creating new problems where none existed.”

Registration fees (per property): on application

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Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, taxation, litigation and inheritance. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

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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. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. No delusional politician was harmed on writing this article. VOV.

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Holiday Rental Laws in Spain – Explaining The Latest Changes

Raymundo Larraín Nesbitt, March, 8. 2015

Lawyer Raymundo Larraín Nesbitt explains the changes in landlord rental allowances (tax relief) in Spain spurred by the key ruling of the European Court of Justice (ECJ) from last 3rd of September 2014 (Case C-127/12), as well as the new holiday rental laws in Spain.

By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
8th of March 2015

 

 

 

Introduction

I am going to split my article in two parts.

The first part deals with the batch of regional holiday rental laws that have swept the land becoming an ubiquitous requirement. Any landlord wishing to rent privately their Spanish property for a period exceeding one month in a year falls under the remit of this new regulation.

The second part deals with the changes in taxation related to rental laws brought about by European Legislation; specifically regarding applicable deductions and allowances at both state and regional level (Autonomous Communities).

 

I. Holiday Rental Laws

 

Definition

Over the past two years almost every Autonomous Community in Spain has zealously ruled on what is known as ‘viviendas de uso turístico‘ or private holiday rentals. These are laws which seek to regulate short-term touristic lets from private individuals and bring them in line with minimum (hotel) lodging standards. The laws in all Autonomous Communities are fairly similar so a couple of common denominators can be extrapolated. A touristic let is generally defined by two elements:

• A dwelling that is offered on a short-term rent to tourists employing the media (internet, newspapers, magazines, travel agencies etc.). There is great diversity in the offered lodging and may range from a letting a whole detached villa in a luxurious seaside resort to renting a single room in a Bed & Breakfast. Some communities expressly bar the possibility of renting a single room.
• The property is let out one or more times a year for a period that normally exceeds one month i.e. summer lets or winter lets in ski resorts. But they can also be rented for days, weeks or months.

Excluded Properties

In general, properties that meet the following criteria would be excluded from this regulation and would fall under Spain’s Tenancy Act (Ley 29/1994, de Arrendamientos Urbanos).

• Property that is lent to friends/family without any compensation (monetary or otherwise).
• Property that is let to the same person/s for a period that exceeds three months in a year.
• Rural property which falls under its own regulation.
• Landlords who own three or more properties in the same development or ‘urbanización’ fall under a different regulation: ‘apartamentos turísticos’ (not to be confused with ‘viviendas de uso turístico’ which is the topic of this article).
• No more than fifteen people can live in the same property.

Requirements

Touristic lets are generally obliged to meet the following criteria which by no means is a closed list (I only highlight the main ones). For an accurate list you should check the touristic rental law of the Autonomous Community where your property is located. Please read further below a region-by-region list of approved holiday rental laws.

EDIT October 2016: For the avoidance of doubt, as some people are reportedly getting confused, what follows is a generalisation. I have taken the draft holiday rental law of Andalusia as template to extrapolate generalities or common denominators to be expected from all regions, as regional holiday rental laws in Spain are in fact fairly similar with small variations. Touristic lets are generally obliged to meet certain criteria, though it varies by region, I list the main ones for Andalucia below. If, for example, you are interested in Murcia region, please check the local regional requirements of Murcia´s holiday rental law for the minutiae (I do not list them below!).

• The property must have attained what is known as a Licence of First Occupation (also known as First Occupancy Licence, Habitation Certificate, Habitation Licence, Licencia de Primera Ocupación, Cédula de Primera Habitabilidad, Cédula de Habitabilidad or Cédula de Ocupación).
• Full compliance with planning, health and safety, security and disabled access amongst other laws; both at a national and regional level.
• Rooms must be ventilated and have blinds or shutters.
• Free internet service available in every room.
• Air conditioning unit in every room (as a fixed fixture, not a portable device).
• When properties are let during the winter season (October through to April) a heater must be made available in every room that is let (as a fixed fixture, not a portable device).
• First aid kit and fire extinguisher.
• Cleaning service at the start of new lodgings.
• Rooms must have adequate furniture.
• Complaints book.
• Touristic guides, maps of the surroundings (books).

Non-Compliance

My advice is that landlords would do well to seek tailored legal advice and determine if their property complies fully with all laws. Failure to comply may lead to stiff fines. Fines range from hundreds to over a dozen thousand pounds.

E.g. landlord has not applied for a touristic letting licence from his town hall or the property is unregistered at the special register for touristic properties.

E.g. landlord is reported because he does not have a ramp built for disabled access.

E.g. landlord does not have a wi-fi connection set up.

E.g. landlord has not attained a Licence of First Occupation from local planning authorities.

My Take on Touristic Rental Laws

I had already written an admonitory article back in 2013 (New Measures to Bolster Spain’s Ailing Rental Market) on the worrisome trend the Autonomous Communities were following on enacting their own laws to regulate touristic lettings on the wake of Law 4/2013 which (clumsily) left the door ajar to them.

I feel compelled to excoriate these touristic rental laws which are a bad idea as in the best of cases they impose a new set of obligations (and associated expenses) on landlords which severely impact their rental income and at worst require a rental licence is attained under threat of hefty fines on non-compliance. In some cases individuals will not be even allowed to rent as these laws (artificially) stifle competition. At no time should public administrations limit the rights and usage of private homeowners to rent out their properties. It is a direct attack on private property which in my eyes is a red line that should not be crossed.

This unnecessary batch of new regional laws only make the prospect of renting for small-time landlords – which are legion – all the more difficult (acting almost as a deterrent) whilst at the same time make life easier on large powerful hotel groups as competition is removed. In other words, these regional laws thwart competition in a free market economy benefiting large corporations at the expense of the little people who make a meagre supplementary income by letting property out. The field is uneven.

Two years on, the majority of the seventeen Autonomous Communities which make Spain have jumped on the band wagon passing legislation on touristic lets. Landlords would do well to seek legal advice on whether their property complies fully with the new spate of regional regulation. Some of these laws (i.e. Balears) require that local authorities issue a ‘rental licence’ before you are allowed to let and impose hefty fines on non-compliance. The obligations are (formally) geared to set a homogenous minimum standard to rent property and in some cases require a substantial upfront investment which may negate altogether the very idea of letting as the numbers may not stack up in every case.

If you examine the new requirements landlords are expected to meet they resemble closely those we have come to expect from the hotel industry (i.e. free wi-fi, A/C units, professional cleaning service etc.). It stands to reason you cannot possibly demand from private individuals the same blue-ribbon lodging standards and services as those offered by financially powerful multinational hotel groups. It’s daft.

Private individuals in many cases will not have the financial means to acquire all the ‘minimum’ gadgets, let alone face the grim prospect of being fined dozens of thousands of pounds on non-compliance. If these regional laws are enforced harshly by authorities it will leave the burgeoning business of private home rentals to affluent people or groups; the only ones with the means to keep up with the frantic pace set out by regional authorities. Borrowing a quote from Thomas Jefferson — “There is nothing more unequal than the equal treatment of unequal people”.

Again the cynic in me asks cui bono? Who stands to gain more from such changes in home rental regulation? Definitely not landlords (or tenants for that matter). The powerful hotel industry does. Property has been let to tourists for decades without major hindrances (in fact Spain’s whole unbalanced and undiversified economy hinges on tourism and construction; they account for well over 20% of its GDP). Adding red tape is unnecessary and redundant.

Why now? Because after a huge property boom that lasted almost a decade the properties now on offer have trebled whilst demand remains stable. This has in turn dramatically increased competition for hotel groups which has severely dented their bottom line (and miffed their shareholders). They have relentlessly lobbied over the last years to curtail what they deem as ‘unfair competition’.

Competition is always good for the broad economy as it drives prices down and improves services not to mention job creation at a time when the economic recovery remains anemic (in Spain). Competition at its heart is what keeps people and companies on their toes. Remove competition and companies become complacent, services deteriorate and prices soar. In a competitive market bad companies are weeded out by consumers through natural selection. More so in the days of internet with professional bloggers that take delight on rating hotel accommodations for the benefit of all us punters. This is not about accommodating lofty ideals, it’s about being pragmatic in today’s tough world. A healthy robust economy demands competition to flourish and create jobs, period. Remember my words next time you have to pay for a pricey (hotel) lodging in Barcelona or Madrid.

You can find an insightful article from American journalist Kevin Brass (New York Times, Wall Street Journal) with poignant comments on the matter of (Spanish) administrations encroaching on private short-term lettings (for the benefit of the hotel lobby) from the 8th October 2014: Opinion: Attacks on Short-Term Rentals Are All Hype.

EDIT 9th of April 2015: Spain’s Competition and Market’s Authority (CNMC) has taken legal action against Madrid’s Holiday Rental Law on grounds of “anti-competitive practices that restrict consumer’s ability to choose (a service)”. More on this: Five-Day Holiday Rental Limit Challenged in Madrid.

 

Region-by-region List of Approved Holiday Rental Laws

 

Moving on from my rant, I have compiled a comprehensive list of the Autonomous Communities in Spain with approved touristic rental laws at the time of this article’s printing. The most high-profile absentee is Andalusia’s draft law which has sparked hot controversy. Regardless, I have included below a link to its draft bill out of interest to anyone.

EDIT 03/02/16: the autonomous region of Andalusia approved its Holiday Rental Law in February 2016. More on this matter in my article: Andalusia’s Holiday Rental Decree.

Holiday rental laws are here to stay. It is a landlord’s duty to acquaint himself and comply with the regulation of his own Autonomous Community. Some aspects of the below-listed regulations vary widely so it is highly advised professional advice is sought beforehand to be on the right side of the law. In some instances, such as Balears, holiday rental licences are fairly restrictive and hard to attain.

• Andalusia: Approved. Andalusia’s Holiday Rental Law explained in English. The new approved law: Decreto 28/2016, de 2 de febrero, de las viviendas con fines turísticos. Fines for non-compliance range between €2,000 to €150,000. Another important law which currently applies is Law 13/2011 of Tourism in Andalusia.
• Aragón: Decreto 167/2013, de 22 de octubre, del Gobierno de Aragón, por el que se aprueba el Reglamento de los apartamentos turísticos en Aragón
• Asturias: Updated regulation pending. Decreto 60/1986, de 30 de abril, sobre ordenación de los apartamentos turísticos and Decreto 34/2003, de 30 de abril, de viviendas vacacionales.
• Balears: More information in my updated article (September 2017) New Balearics Holiday Rental Law. Require a holiday rental licence for villas and townhouses; apartments are excluded. Decreto Ley 6/2013, de 29 de noviembre, por el que se modifica el artículo 52 de la Ley 8/2012, de 19 de julio, del Turismo de las Illes Balears
• Basque Country: Decreto 198/2013, de 16 de abril, por el que se regulan los apartamentos turísticos
• Canary Islands: Fairly restrictive. Decreto 142/2010, de 4 de octubre, por el que se aprueba el Reglamento de la Actividad Turística de Alojamiento and the new Reglamento de las viviendas vacacionales de la Comunidad Autónoma de Canarias. Read this post on the new holiday rental law for the Canary Islands.
• Cantabria: Decreto 19/2014, de 13 de marzo, por el que se modifica el Decreto 82/2010, de 25 de noviembre, por el que se regulan los establecimiento de alojamiento turístico extrahotelero en el ámbito de la Comunidad Autónoma de Cantabria
• Castilla-La Mancha: Unapproved.
• Castilla y León: Unapproved, only for rural tourism Decreto 75/2013, de 28 de noviembre, por el que se regulan los establecimientos de alojamiento de turismo rural en la Comunidad de Castilla y León
• Catalonia: Barcelona city is restrictive with new permits. Decreto 159/2012, de 20 de noviembre, de establecimientos de alojamiento turístico y de viviendas de uso turístico
• Extremadura: Unapproved / updated regulation pending. Decreto 182/2012, de 7 de septiembre, de ordenación y clasificación de apartamentos turísticos en Extremadura
• Galicia: For detached homes only; room rentals are banned Decreto 52/2011, de 24 de marzo, por el que se establece la ordenación de apartamentos y viviendas turísticas
• La Rioja: Unapproved.
• Madrid: Stays of less than five days and single room rentals are banned Decreto 79/2014, de 10 de julio, por el que se regulan los apartamentos turísticos y las viviendas de uso turístico de la Comunidad de Madrid
• Murcia: Updated regulation pending. Existing regulation is from 2005. Decreto 75/2005, de 24 de junio, por el que se regulan los apartamentos turísticos y alojamientos vacacionales
• Navarre: Updated regulation pending. Decreto Foral 230/2011, de 26 de octubre, por el que se aprueba el Reglamento de Ordenación de los Apartamentos Turísticos en la Comunidad Foral de Navarra
• Valencian Community: Decreto 92/2009, de 3 de julio. Reglamento de Alojamientos Turísticos y empresas gestoras de la Comunitat Valenciana.

 

II. Changes in Taxation Brought About by European Legislation

 

Landlord Rental Allowances

Following up on last month’s article regarding the ECJ’s landmark ruling of last 3rd of September 2014, which put an end to discrimination between residents and non-residents on taxation matters, these changes also affect rental laws.

Law 26/2014 of the 27th of November amends both the Personal Income Tax Act (I.R.P.F.) and the Non-Resident Income Tax Act (I.R.N.R.). These changes came into force on the 1st of January 2015. I had already referred to these changes in December’s and February’s articles: Taxes on Selling Spanish Property and Changes To Spain’s Inheritance And Gift Tax Law.

Law 26/2014 adapts and transposes the decision taken by the ECJ amending internal Spanish national laws. It brings to an end (fiscal) discrimination between residents and non-residents in a wide array of matters; for this article’s sake specifically on rental matters. EU-residents are now treated on par with Spanish residents on taxation matters relating to allowances and deductions. This translates into paying fewer taxes (as non-residents now qualify for deductions and tax allowances which were previously barred to them as these were earmarked for Spanish residents alone).

For the purpose of this article, when I make reference to ‘non-tax residents’ I will always be referring to citizens which are either tax resident in another Member State of the European Union or else in the European Economic Area (E.E.A.). Just to clarify, the below-listed changes do not benefit tax residents outside of the EU or EEA.

Rental Allowances – Situation Prior to the ECJs’ Ruling

Non-resident rental allowances were virtually non-existent prior to this ruling for private individuals. There were few instances in which you could offset rental taxes as they required you employed someone full time and had a permanent establishment in Spain. Obviously of little practicality which was not an option for the vast majority of non-resident landlords.

Post-ECJs’ Ruling – Changes to Spain’s Rental Laws

The ECJ’s key ruling of 3rd of September 2014 marks the inflection point which puts an end to (fiscal) discrimination between residents and non-residents. It forces Spain to amend its internal laws and accommodate the European principles on which the EU is grounded on. The significance of the ECJ’s ruling is that it has opened up the opportunity for non-residents to apply as from the 1st of January 2015 to the below-listed state tax allowances and deductions which were previously reserved only to Spanish residents. In addition, non-residents may also benefit from those set by the Autonomous Communities where the property is located which have a penchant of being more generous than state law.

When taxpayers are resident in another European Union Member State, or in the E.E.A., the expenses described in the Law on Personal Income Tax (IRPF) can be deducted when calculating the taxable base, provided that proof is supplied that these expenses are directly related to income earned in Spain and have a direct economic connection that is inseparable from the activity carried out in Spain. When expenses are deducted, a certificate of tax residency in the corresponding State issued by the tax authorities of that State must accompany the tax return.

Landlord’s State Allowances and Deductions for Private Home Rental

The following state deductions and allowances can be offset or deducted mitigating the tax bill without prejudice of additional compatible allowances set out by the Autonomous Community contingent on where the property is located. Please take legal advice on the latter for your particular case as for economy of space I will not be listing them below.

The above translates into higher returns for a landlord. Meaning non-resident landlords stand to profit from higher net yields on letting in Spain as from 2015.

Article 24.6 of the Non-Resident Income Tax Act (I.R.N.R.) makes a direct renvoi on these to art. 23 of the Personal Income Tax Act (I.R.P.F.).

1.- Physical Persons

A. Rental Tax Relief / Deductible Expenses (Art. 23 I.R.P.F.)

Proof must be supplied that the following expenses are directly related to income earned in Spain and have a direct economic connection that is inseparable from the activity carried out in Spain.

• Interests arising from a loan to buy the property (i.e. mortgage).
• Local taxes and administrative charges and surcharges that impact on the rental income or else on the property itself (i.e. IBI tax, rubbish collection tax).
• Expenses arising from formalising rental contracts such as lets or sublets (i.e. Notary and/or Land Registry fees); legal defence (i.e. hiring a lawyer for tenant eviction purposes).
• Maintenance costs may be offset; refurbishment expenses are excluded.

Examples of maintenance costs (deductible): repainting over flaky paint, plumbing, debugging, tennis court green mold cleaning, swimming pool pump replacement, annual lift maintenance, leaking faucet.

Examples of refurbishment expenses (non-deductible): glass curtains, double-glazed windows, parquet, marble floor, extension to property (outbuilding), tennis court, swimming pool, private lift.

Notwithstanding the above, refurbishment expenses may be claimed on selling the property by offsetting them against your Capital Gains Tax liability. Please read my article: Taxes on Selling Spanish Property.

• Home insurance premiums (theft, fire, civil liability etc.). Please read my articles Home Insurance in Spain, Community of Owners’ Insurance Policies and How to Cancel your Home Insurance Policy in Spain. However claims arising from events that diminish the value of a dwelling are non-deductible i.e. fire
• Utility invoices (electricity, water, gas and landline).
• Concierge, gardening & security services (i.e. gated communities).
• Home depreciation and amortization. The calculation is 3% on the highest value of the following two: home buying costs or cadastral value; the value of the land is excluded.

B. Allowances

• The 100% tax allowance on letting to under thirty-year-olds is supressed as from the 1st of January 2015. The allowance is now 60% on the net income regardless of a tenant’s age.

2.- Legal Persons

Those set out by the Company’s Income Act (Law 27/2014, of 27th of November).

Changes to Spain’s Rental Laws – Conclusion

Any change that implies paying fewer taxes is always welcome. The less Administrations meddle in private affairs and businesses, all the better.

If you own property in Spain and plan to rent it out for a period exceeding one month in a year I strongly recommend you seek legal advice to comply with the obligations set forth by your Autonomous Community.

“Freedom is the right to question and change the established way of doing things” – Ronald Reagan.

American 40th US President (1981 – 1989). He steadfastly contributed to the Cold War victory which led to the fall of the Berlin Wall and the collapse of the U.S.S.R.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

Legal services Larraín Nesbitt Lawyers can offer you

 

Related articles

 

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. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. No delusional politician was harmed on writing this article. VOV.

2.015 © Raymundo Larraín Nesbitt. All rights reserved.

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New Measures to Bolster Spain’s Ailing Rental Market

Raymundo Larraín Nesbitt, July, 8. 2013

The Government has drafted a new rental law in an attempt to bolster and streamline the ailing rental market, but curiously one of the biggest beneficiaries will be the hotel industry.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of July 2013

 

 

 

Introduction

Property ownership in Spain is deeply embedded in the national psyche as I have analysed over the years in my articles. Some would even call it a national obsession (followed by football and not necessarily in the same order). Property ownership is widely viewed as ‘superior’ to renting almost as a social status all unto itself (!). Several popular well-known mantras upholding such (false) belief have endured over the boom years. But the receding tide of prosperity, induced by this recession, has exposed them for what they always were – false myths:

  1. “Alquilar es tirar el dinero” which loosely translates as ‘renting is throwing away (good) money’
  2. Another good one is “nunca bajan” translated as ‘(house prices) never fall’
  3. And last is my all-time favourite: “siempre lo podrás vender” translated as ‘(don’t worry) you can always sell it’; yeah right!

Spanish parents are obsessed with leaving their children property when they should really be concerned on gifting them a top-notch education allowing them a chance in life to win their spurs.

Unsurprisingly, because of this historical national fixation for property ownership 83% of properties in Spain are inhabited by their owners as opposed to only 17% being rented out. Compare these (very) sad figures with a far more developed rental market in Europe which boasts an average of 30 to 40% rental occupation. Moreover, all this money that is (foolishly) ploughed into property is a wasted opportunity cost that could be better put to use in the money markets investing in companies and start-ups, creating jobs and wealth, rather than saddling with debt legions of Spanish families who now face the grim prospect of a lifetime sentence in the form of a financial millstone around their necks for the remainder of their existence. A huge change of financial culture in Spain is urgently required in line with Protestant countries (historically more financial savvy) that can only be achieved through education from an early age at school. I venture that one positive outcome of this ‘recession’ will be that scores of Spanish will now be forced to rent as opposed to buying outright.

The underlying historical reasons on this fascination are numerous and exceed the object of this article so I won’t digress. What matters is that the Government, with millions of properties standing empty and millions more of young – and not so young – workers unemployed, has finally smelled the coffee. They have been busy drafting a new law in an attempt to bolster and streamline an ailing rental market in the hope of making it more dynamic and robust.

Ley 4/2013, de 4 de junio, de medidas de flexibilización y fomento del mercado del alquiler de viviendas

Ley 4/2013 is the law published in Spain’s Official Law Gazette on the 5th of June that heralds these changes. The official line is that it brings on a slew of novelties which will hopefully bring a breath of fresh air into a stale rental market. This new law significantly amends Spain’s all-important Tenancy Act (Ley 29/1994, de 24 de noviembre, de Arrendamientos Urbanos). Popularly known by its acronym ‘LAU’.

However I speculate that the ‘real’ agenda being pushed by this law is another and I elaborate further in my conclusion below. In my opinion this is yet another patchwork law that attempts, for the umpteenth time, to do something about Spain’s chronically failing rental market – and most likely will fall flat on its face.

Major Highlights of Spain’s Amended Rental Law

  • The exclusion of Spain’s Rental Act for touristic property lets. This is hands down the most significant change in my opinion made by this reform as it now purposefully leaves out what are known as ‘touristic tenancies’. The LAU used to rule on all tenancies (except those deemed as ‘luxury’ rentals). Touristic tenancies will now be ruled by Spain’s seventeen regional autonomous communities. To make it more complicated, not all autonomous regions have such laws implemented. Touristic rentals require a licence from the local administration. The matter is so complex that it easily merits its own article given the fact there are seventeen autonomous regions in Spain capable of enacting their own laws on the matter compounding it furthermore. Always making administrative matters easy.
  • The legally mandatory five-year rental period for long-term rents is now reduced to a three-year period.
  • As a direct result of the above, deposits must now be reviewed after the three-year period has elapsed (as opposed to the former five-year period).
  • The tacit renewal is reduced from a three-year period down to one year.
  • A landlord may now recover the possession of the property after a year has elapsed under certain circumstances. Unlike before, this now does not have to be expressly worded into the contract.
  • The landlord may now sell the property and the new owner may terminate the existing tenancy agreement so long as it is not lodged at the Land Registry. Before this law, the new owner was forced to respect the existing mandatory tenancy until it ended. This is a very welcome measure indeed. So for all new contracts signed after the 5th of June 2013 it would be advisable for a tenant to have their tenancy agreement lodged at the Land Registry if they want some degree of protection against the owner selling the property and the new owner moving in and have them vacated. On lodging the tenancy agreement if the owners sells on the property, the new owner will be forced to respect the tenancy for the mandatory three-year period (used to be five years before this law).
  • Tenants may now notify their landlords, at any moment, with only 30 days in advance of their will to terminate a tenancy provided they have already rented it for a six-month period. Before a tenant needed to wait until almost till the end of the tenancy or else face compensating the landlord for the lost rental if they decided to bail out ahead of time. Notwithstanding a suitable compensation can still be agreed. This is an advantage for tenants really, not for landlords, as it allows them more flexibility to terminate a tenancy.
  • If in agreement, the let can now be forfeited for a set period of time so long as the repairs in the property are shouldered by the tenant. This must be mutually agreed.
  • Both parties may now opt-out of the IPC, as the annual benchmark to increase a tenancy, and choose another index. IPC stands for ‘Índice de Precios al Consumidor’ which is a Consumer Price Index which is widely used in Spanish contracts as a benchmark to increase services in line with the annual rise of inflation.
  • It can now be agreed by both parties that long-term tenants may waive their pre-emption and buyout rights (‘derecho de tanteo y retracto’) in a resale as is stipulated in section 25 of Spain’s Tenancy Act.
  • Changes to Spain’s all-important Civil Jurisdiction Law, (1/2000 – LEC) to further streamline the eviction procedure. Non-paying tenants will now be given only a ten-day deadline to bring arrears up to speed. The more legal fat is stripped away, the more efficient and streamlined will the resulting eviction procedure turn out. This is frankly positive but hardly groundbreaking.

 

Conclusion: more beating around the bush

Although some of the above changes are indeed a positive step in the right direction, most are superficial. I remain largely sceptical of this new law because, once again, it doesn’t really address the main issues which historically hamper Spain’s rental market, and only beats around the bush.

So why on earth bother to approve a law that seemingly won’t make much of a change in the rental market? The cynic in me can’t help but think that, brushing aside negligible cosmetic changes in the overall picture, the real agenda being pushed is that of the hotel industry.

After a decade of booming construction, where thousands of new-build properties were bought en masse and let out to foreigners at large, the hotel industry has experienced massive losses as a result of all the unregulated competition from a myriad of humble property investors dotting the Spanish coastlines. It has reached the point where many first class hotels now close down during the low season, something unheard of previously. This new law – quietly but relentlessly – effectively introduces a restriction to letting by private individuals, leaving it to autonomous regional communities to rule on the fine details of what a touristic licence actually entails. Which is why I place it as the first, and most significant, point on reviewing and listing above the amendments brought about to Spain’s Tenancy Act (LAU).

One would have to ask oneself: who stands to benefit with this reform and whose interests are served by it? Cui bono? Certainly not the countless foreign small-time investors looking into buy-to-lets to make some money on the side to supplement their (meagre) income. Again an ill-conceived political measure that meddles in the economy that will prove to be counterproductive on the long-term as it will foreseeably deter would-be buyers who would have otherwise invested had they unrestricted freedom to rent. Talk about shooting oneself in the foot.

Forcing home owners across Spain to ensure their properties comply with the same regulations already imposed on hotels (minimum quality standards, health and safety, kitchen appliances etc.) is daft and may be safely labelled as an unnecessary exercise of interventionist legislation aimed to thwart or restrict the sacred use of private property (in benefit of the hotel industry). No to mention treating as equals those who are financially unequal as both hotels and private individuals stand to comply with the same set of standards if they want to attain a licence to rent. In any case, let’s not rush ahead as the fine details will be ruled by the seventeen autonomous regions so we will just have to wait and see before judging in advance regional legislations. Few communities have already ruled on this i.e. the Balearics.

EDIT 2015: My conclusion was correct. Fast-forward two years for the new batch of holiday rental laws that restrict private rentals:

Holiday Rental Laws in Spain - Explaining The Latest Changes – 8th of March 2015

 

Back on topic, to foster a robust rental market we’d be better off taking a bold stance and resolutely reworking the whole eviction system from the root rather than approve a string of half-hearted piecemeal laws which honestly will scarcely make a dent on matters. What would *really* kick-start the rental market in Spain would be chiefly:

  1. Change the predominant Spanish mentality towards rental and ownership achievable only through an early education at school. Rental must stop being demonised by society at large and accepted as a perfectly valid option in life. State and private schools should teach finance to children. A long-term goal.
  2. Have non-paying tenants evicted in less than ten days from a property instead of having to wait for months on end or even years to make it happen. A short to medium-term goal reworking the legal (procedural) system.

These two measures would greatly help to nurture and consolidate a budding rental market in Spain. Granted, it wouldn’t happen overnight. It takes considerable time to change people’s mentality. Besides, there are far too many legal constraints and guarantees safeguarding non-paying tenants’ rights. What about the landlords I ask? Long eviction periods lead to tenants trashing properties, to landlords losing rental to offset their mortgage repayments (which in turn may even lead to a repossession of the rented property), besides unnecessarily increasing tenant eviction legal fees paid for by distressed landlords. This nonsense should clearly be put to an end.

The rental sluggishness in Spain can largely be pinned down to landlords being afraid of renting out properties given how biased historically laws are in favour of (non-paying) tenants. This is the crux of the problem – fix it and you are half way there to pave the way to a robust rental market.

It is Spain’s ruling political class who wield the power to alter matters if they willed it – but I guess they don’t have the backbone for change; too unpopular and ‘politically incorrect’ or maybe they are simply complacent with the current status quo. Real statesmen do, at all times, what’s best for their country no matter the unpopularity or electoral cost. Because they have a long-term vision of matters with their hearts set in the country’s future prosperity as opposed to career politicians who take decisions on the hoof based on short-term opinion polls. Piecemeal attempts from career politicians will only further the pain and foreseeably set back recovery by several years.

But hey, politicians and lawmakers, in general, are also entitled to make a (very) nice living by drafting and publishing half-baked laws, such as this one, to justify their outrageous public stipends and perks whilst the rest of the country languishes bearing the brunt of an unending ‘recession’.

“Off with their heads!” ? Lewis Carroll. Alice in Wonderland.

English writer, mathematician, logician, Anglican deacon and photographer.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, inheritance, taxation, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

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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. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. No politician was harmed on writing this article. VOV.

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Letting in Spain: The Safe Way

Raymundo Larraín Nesbitt, October, 10. 2012

Quo Vadis Hispania? At a time of widespread financial uncertainty and even political instability, you may want to read a few tips that will help you stay ahead in the letting game as a landlord in Spain.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
10th of October 2012

 

 

Original article from 31st January 2.008

 

Introduction

Landlords in Spain are all too familiar on having been stung by troublesome tenants that made them wish they had never let their properties in the first place.

The aim of this article is to provide some tips on the pre-emptive measures and safeguards that ought to be put in place in advance of renting to achieve a hassle-free let.

1. Tenant Screening.

One of the major problems landlords face post credit crunch is the increasing number of non-paying tenants. Many ex-pat landlords rely on a let partially or wholly to offset mortgage repayments. No one wants to be tangled in a long protracted eviction procedure which may lead a landlord into arrears or even end with his property being repossessed. Spanish lenders pursue borrowers for negative equity even in their home countries as explained in my article Spanish Creditors Pursuing Debts Abroad (Recognition and Execution of EU Member State Rulings).

One of the best ways to avoid non-paying tenants is to take pre-emptive measures such as carefully screening candidates, weeding out those with unsuitable profiles. Haphazard screening can only lead you into trouble.

There is now a helpful website available that lists non-paying tenants in Spain: ‘Fichero de Inquilinos Morosos’ (FIM). For a reasonable small fee you will be able to search – in English – if your prospective tenant has actually defaulted previously on a Tenancy Agreement. There are professional defaulting tenants that roam the country in search of their next victim, preying preferably on trustful non-residents. In hard times such as these, many struggling landlords cannot endure the hardship of a financial leach that eagerly exploits Spain’s Tenancy laws’ shortcomings.

This website’s database is continuously updated with the input provided by both eviction rulings as well as by other users’ feedback. You can additionally include your own non-paying tenants in their list providing you comply and follow the online form’s instructions. Professional non-payers – who’ve made a lifestyle out of it – will already be included in this black list.

I would advise using this website only for those candidates who’ve been shortlisted in your screening process. You might as well spend a few dozen Euros now rather than having to fork out thousands at a later date in an eviction. Better safe than sorry.

2. Arbitrage Clause

Adding this clause to a tenancy agreement allows eviction associated disbursements to be curbed down significantly as well as saving considerable time.

This system was created back in 2004 and allows to significantly reduce both the associated expenses as well as the necessary eviction time compared to a normal court procedure (which spans normally ten months). However, this system only works if both parties, tenant and landlord, abide the mandatory Arbitral Award something which does not always happen as non-paying tenants may only be buying time with no real intention of paying the arrears. On which case the matter is passed on to a judge. On average it is estimated that 30 to 40 per cent of arbitrage cases are settled out-of-court. So it is not all that is cracked up to be to be honest.

The main advantage would be the swiftness in which the arbitral award is obtained. The Arbitral Court guarantees that a case will be examined within 30 days, often even less. This is particularly important in cases in which the landlord offsets the rent against his mortgage repayments and risks slipping into arrears which may lead to a bank repossession.

The second advantage would be the considerable amount of money it saves the landlord. It only costs €40 plus a further €300 in case of a protracted conflict (£240). A normal court procedure would have an average cost of at least €2,000 (£1,600).

It is only necessary to request it in a real estate agencies of your region homologated by the Arbitral Court or simply including it as a clause in a Tenancy Agreement waiving an ordinary court procedure – at least initially.

3. Rental Insurance

Increasingly you will find more and more insurance companies offering relatively inexpensive tenancy insurance charging typically a one-time annual fee equivalent to 60% to 100% of a monthly rental. This insures the landlord against the tenant defaulting, and covers lawyers’ fees during the eviction process (up to around €2,000). They also insure different scenarios i.e. a disgruntled tenant destroying the home furniture during an eviction procedure up to a pre-agreed capped amount. Normally this amount is in the region of €3,000.

These insurance companies evaluate the credit risk of a prospective tenant unlike banks with rental bank guarantees. So basically they already do a tenant screening on your behalf as its their own money that’s at stake. However the catch is that these companies picky and may be only interested in insuring tenants which are regarded as ‘very safe’ from a financial point of view. They would be looking for a would-be tenant matching the following profile: long term job contracts (“indefinido” in Spanish) and are earning above €1,200 gross pm. Nowadays it is no small feat post Labour reform (implemented early on this year) to find such tenants. The significant change in Labour laws has translated into widespread reductions of 30 pc in Spanish wages. Not long ago a ‘mileurista’ (someone who barely earns one thousand euros a month and has attained a university degree) was socially derided; now it is the aspiration of the better part of today’s soaring unemployed youth.

4. Rental Bank Guarantee

My advice for landlords is to request from a prospective tenant what is known as a ‘rental bank guarantee’ (“aval bancario”). Commercial leaseholds are the natural niche that requires bank guarantees as these types of lets are fairly steep. But the benefits can also be extended to home rentals.

This would ensure the landlord against a tenant defaulting. The landlord may execute said guarantee and the bank would be obliged to pay them immediately. The bank in turn would claim this amount from the tenant. This bank guarantee should ideally be made to secure the following 5 years even if the tenancy agreement is only for short term.

However there is a catch, claiming on this rental bank guarantee is no substitution for an eviction procedure, rather a compliment to it. For example, a tenant may default on the second month, the landlord after having sent letters claiming the owed rental to no avail, executes the bank guarantee (which secures for example six months’ rental). But the non-paying tenant will still be living inside the property.

Ideally rental bank guarantees should be exercised after an eviction ruling, not before. It is common place that tenants on Spanish coastal areas have, naturally, no assets of their own so after an eviction process the landlord is still owed the lost rental income. The bank guarantee could then be claimed on to offset this rental loss. The tenancy contract would also have to be terminated of course for breach of contract according to art. 1124 of the Spanish Civil Code. I advise you to hire a lawyer on doing this.

In the current bleak financial context in which non-paying tenants – particularly awash in coastal areas – are defaulting, this bank guarantee would act as a heaven-sent safety net for landlords ensuring payment once the eviction process is over helping to remove most of the associated stress – because the money is already there, locked up in a bank account.

A rental bank guarantee are ideally suitable for long term tenancy’s (eleven months renewable) not for short periods such as summer lets (one month or a couple of weeks). Luxury summer lets, particularly mansions and villas, would be the exception, warranting making good use of rental guarantees because of the amounts involved.

The drawback is that a bank guarantee is expensive and requires a tenant to deposit lump sum an amount of money at their own bank, typically 12 months rental, which is left in custody. On top of this, banks normally charge 1% of the amount, notary fees, opening interest and a quarterly interest. Not all tenants find themselves in a comfortable financial position to provide this bank guarantee upfront either because they lack the funds or, even if they do, are unwilling to have it tied-up until the guarantee elapses which could be anything as long as five years.

A bank guarantee does not ensure in any manner a tenant is financially sound – you have been warned. Unlike insurance companies offering rental insurance (see point three above), banks at no time carry out a due diligence on the tenant’s assets and financial ability. It merely guarantees that a tenant deposited an amount of funds equivalent to say twelve months rental which the landlord can claim upon default. The tenant cannot dispose of said funds until the bank guarantee elapses. Notwithstanding banks may include clauses that hinder the execution of the guarantee which is why I recommend you to hire a lawyer to help arrange these guarantees and avoid abusive clauses.

This guarantee is handed over by a tenant at the time of signing a rental agreement, never after. The landlord will hold it and deliver it back once the tenancy is terminated satisfactorily with no pending amounts owed.

In Conclusion 

Careful screening and weeding of prospective tenants as well as implementing rental insurance, a rental bank guarantee and finally but not least an arbitrage clause will vastly increase your chances of successfully letting property in Spain.

Landlords that risk overlooking the above listed time-proved tips will do so at their own chagrin.

 

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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. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

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Rent-to-Buy in Spain: The Smart Choice

Raymundo Larraín Nesbitt, April, 8. 2012

A rent-to-buy contract let’s you enjoy a Spanish property now, whilst leaving the door ajar for purchasing later, if house prices continue to fall in Spain (as most people expect them to!).

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of April 2012

 

 

Original article from 5th November 2.009

 

Introduction

It has become Spain’s favourite sport to second-guess on when the real estate market will pick up again. Reputed experts, both national and foreign, are jumping in giving all sort of contradicting timelines for its recovery i.e. 2014, 2017 and the most pessimistic ones on 2020. Although it may be fun to indulge on this sport on whether it will be an “L”,“U”,“W” or X-shaped recovery the gist is that it remains a fairly futile exercise as everyone – both experts and laymen alike – are basically clueless on where the market will be heading next. Property prices are now cheap but who is to say they won’t be cheaper next year or even the year after?

As appealing an amusement as may be, I believe it is impractical and rather sterile for most would-be buyers who are now sitting on the sidelines waiting for events to unfold, as in hindsight very few people call the market bottom correctly and most miss out on a lifetime opportunity to snatch a bargain in the dip.

These potential buyers who are now sitting on the fence musing over how much lower house prices can fall may in fact already – unbeknownst to them – profit from today’s market turmoil. A rent-to-buy contract does exactly that. It is an interesting alternative worth looking into in times of uncertainty (such as these) on where house prices will be heading next. In this article I will show you how to take advantage of today’s market uncertainty turning it around in your favour.

A lease purchase simply removes all the associated angst on whether one should still be holding out or else be moving in for the kill. The truth of the matter is that no-one has a clue on when the market will finally hit rock bottom. And even then it may be lingering on a valley for quite a while until it picks up again. So it may be worthwhile playing it smart following this rent-to-own option, jumping in today at tomorrow’s prices.

What is a Let-To-Own Contract?

This type of contract, “contrato de alquiler con opción a compra”, allows you to lease a property, whether off-plan or resale, with an option to buy it within a given deadline normally spanning 2 to 5 years. The main advantage is that the full let is discounted from the final purchase price. So if you finally opt to buy the property within the deadline, the paid rent (rental premium) will be deducted in full from the pre-agreed sales figure. Alternatively, should you choose not to, you can simply walk away and move on.

This contract has multiple advantages for both grantor and grantee in the context of a deflationary environment – such as the current one –. If you are of the opinion that property prices in Spain will be falling steadily over the next years, rent to buy will appeal to you.

The advantages under normal circumstances far outweigh the potential disadvantages. It is worth noting that the below listed advantages are almost certain to take place under normal circumstances; however, the disadvantages may – or may not – take place, which is why I label them as “potential”.

 

Advantages

 

For the option holder

Foremost is the flexibility it allows you. You can actually withdraw from the contract as if it were a normal Tenancy Agreement should you spot a better opportunity within the next years, forfeiting the lease of course. At no time are you forced to buy the property at the end of the deadline, it is your choice. This lack of commitment actually enables you to be on the prowl looking out for other opportunities without being tied down.

As written in the definition, the rent premium is deducted in full from the sales price, so it is not forfeited as it would normally be the case in a Tenancy Agreement.

The pre-agreed price of the property stipulated within the contract is normally well below the current market price so as to provide a reasonable incentive to prospective buyers. A markdown varies from contract to contract, but in my opinion should span 20 to 30 per cent discount on current sales prices to warrant signing it. This helps to offset the risk of property prices decreasing even further in the near future (next couple of years) as the pre-agreed sales price has already factored this in. By the same token, should property prices rise again, the pre-agreed price is respected. Win-win.

It allows you the opportunity to scout the area and know your neighbours well before you move in for the kill (commit to purchase). Did you know your next door neighbour may be a local DJ playing music late into the night? Well you could have easily avoided all those sleepless nights if you had first rented the property rather than buying it outright. When you are a foreigner it is important you carefully choose an area where you can blend in nicely. For example, not all areas are family friendly, so it may take a while until you find one that ticks all the right boxes.

If you are still based abroad, and find yourself constantly commuting to Spain, this contract is a great option as it gives you freedom and you only commit if you decide so. No strings attached.

You may freely agree on the time frame to exercise the purchase option tailoring it to suit your needs. Normally they span 2 to 5 years but can agree elsewise.

In some contracts you may assign the option to buy. This allows for even greater flexibility as the would-be buyer can sell on the right to a third party allowing for a speculative angle.

Unlike the UK, there is no option fee to be paid on exercising the option right.

For off-plan you can actually claim back the VAT you are overpaying for the lease which will be set at 18%. Buying off-plan freehold property has currently set a VAT of 8%. You are entitled to claim back the difference only if you exercise the option to buy from a developer. It is advisable there is a clause specifically worded on this point.

You are actually living in the property that will be yours in a near future without being riddled now with the associated stress of applying for a mortgage loan. Although you may not qualify for a mortgage loan at the present time you may qualify in a few years’ time when the credit market ease’s up again. Currently lenders in Spain are focusing on lending only against properties they own (because they are desperate to get rid of them).

If the property is within a Community of Owners you may come to know of internal problems which are non–apparent. You may possibly never have come to knowledge of these quirks unless you had gone through the hassle of leasing the property first. Not least is worthwhile mentioning that you will not be expected to pay the Community fees, these will be taken care of by the landlord.

The applicable laws will normally be Spain’s Tenancy Act (Law 29/1994), the Spanish Civil Code and the Private Contract of course. Tenancy laws in Spain are historically biased towards tenants so it’s always good to be protected by them being a tenant. I advise lodging this contract before the Land Registry.

For the option grantor

The advantages are self-evident. Foremost you actually have a tenant who is foremost interested in buying the property not just in renting it out, avoiding pesky time wasters altogether. An option to buy actually increases the pool of genuine potential buyers as it makes it easier for them to commit now.

The let can help offset any mortgage repayments, community fees or expenses in general thus avoiding slipping into arrears.

Having a tenant inside should normally ensure the property will be looked after properly avoiding it sitting empty which may lead to break-ins or in the worst cases even being vandalised.

On very long-term options it is normal to implement additionally an option fee. If you’re tenant defaults you can always pocket it besides the let’s deposit and the rental premium. It’s a win-win.

 

Potential Disadvantages

 

For the option holder

You are actually letting a property. You must ensure you will be able to meet the let on time otherwise you will be jeopardising the contract. Bear in mind currency exchange rate fluctuations if you’re source of income comes from abroad i.e. sterling pounds or dollars against the euro.

As it’s a let, the rent premium may be revised annually by your landlord bringing it in line with inflation. Spanish Tenancy Agreements are normally referred to the Consumer Price Index (IPC in Spanish).

For very long-term options, exceeding normally 3 years, an additional deposit (option fee) may be requested by the landlord besides the normal 1 or 2 months’ deposit for letting out the property. This may not appeal to everyone of course but it is done as a sign of a serious commitment on behalf of the potential buyer.

The main disadvantage is that these contracts last typically 2 to 5 years and in the interim the landlord’s financial circumstances may change – for the worse – i.e. if the property has a mortgage loan taken against it and the landlord defaults, it may lead to a full-blown repossession procedure. You would still have a right to let the property if it’s repossessed, as the lender must respect long-term tenants, albeit you may no longer have the option to exercise the purchase of the property in the same conditions as you agreed to initially. You would actually have to raise the funds now and pay off the outstanding mortgage on the property if you wish to buy it off from the bank. Not to mention that if you additionally paid an option fee you would likely forfeit it in the event of a foreclosure. But truth be said, lenders are showing themselves very flexible with properties they own allowing for plenty of room to negotiate. It is a buyer’s market after all and they are unlikely to let go easily of a potential buyer caving in where necessary to secure the sale.

Buyers prefer long-term options to build up equity and in the interim keep an eye on where the property market will be heading next. Short-term options appeal to vendors but on doing so they will be reducing the pool of potential buyers as few buyers will be interested. It’s a tug of war on which a consensus, balancing both opposed interests, must be sought. At the end of the day concessions will have to be made by both parties.

An important problem to consider is committing yourself on a pre-agreed price that on the long run, despite the hefty built-in discount acting as an incentive, may still be above the current market price. Obviously it makes no sense to execute the option if you are buying a property above the current market value. It would then be a case of a lost opportunity; what could you have done with the rental money if you hadn’t signed this contract? At no time are you forced to buy the property but you will of course forfeit – in full – the paid rental (opportunity cost) negating the main advantage of pursuing a let-to-buy. If you are of the – gloomy – opinion that property prices will be cheaper in five years’ time, you may want to hold out a little longer until you sign a rent to buy contract.

For the option grantor

From the grantor’s perspective it’s that you are letting your Spanish property with a potential view to selling it on at some point in the future. Letting entails the risk of the tenant defaulting becoming a non-paying tenant in which case a formal eviction procedure would have to be followed before the law courts. This can however be mitigated to a great extent requesting for long-term options (those exceeding 2 or 3 years) a deposit (option fee) from the option holder as a token of good will or else you can always include an arbitration clause in lieu of having to resort to the civil courts which brings down significantly the timescale – and costs! – on having the non-paying tenant removed from your property.

The opportunity cost. On signing this agreement you will be held legally bound for whatever timeline you’ve agreed upon. This is particularly annoying in the event of a cash-buyer springing out of the woodwork knocking at your door… Although it may sound unrealistic given today’s bleak outlook, should the market pick up again this is bound to happen and must be carefully weighed in. By accepting a rent-to-buy contract you are implicitly gambling the market will remain depressed for the next years. It makes no sense whatsoever to grant this option if you expect the market to rebound in a couple of years.

It goes without saying you will have to carry out a thorough screening procedure on potential candidates weeding out unsuitable profiles (bad debtor´s list). Fortunately you can now rely on external databases, such as FIM’s, which can greatly assist you eliminating professional non-paying tenants that abuse Spain’s legal system.

In Conclusion

Rent-to-own schemes may not be everyone’s cup of tea albeit it is a very interesting option to pursue if you’re serious and committed on buying a property below the market value (BMV) taking advantage of today’s market turmoil. On following it, you will simultaneously retain a certain degree of freedom should either your personal circumstances – or the markets’ – change. Buying property is always a serious decision for most people and this type of contract actually allows you the flexibility to live in it without forcing you into buying it.

When the market picks up again in “X” years’ time (take your pick), these contracts will no longer be as widely available as they are today both on off-plan and resale property. It is precisely the current financial uncertainty which drives landlords and developers to offer this type of contract that may benefit both them and the would-be buyer (option holder).

Those who are resolute on buying a cheap property, which has already a pre-agreed significant built-in discount in relation to today’s prices, may already profit from the current market uncertainty removing all the associated stress – and potential lost opportunity cost – of second-guessing where today’s property market will be heading next. Might as well leave all the guessing-work to experts throwing darts, however fun it may be, and just play your cards right. Mind you, these “confounded” experts do seem to always get it right… in hindsight.

And to close this article, I recommend you hire a registered Spanish lawyer to either draft this contract or else to review an existing one (if it’s the case) so as to avoid rash decisions that may lead you to future losses.

Remember: only because a contract is labelled as a “let to buy” it doesn’t automatically qualify it as a good deal (it could very well be a raw deal); especially if the built-in discount is not high enough to offset the risk of prices decreasing over the next years – very likely.

“All that glitters is not gold” – Aesop.

Ancient Greek fabulist or story teller.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, taxation, inheritance, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

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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. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

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Renting in Spain: Top 10 Mistakes

Raymundo Larraín Nesbitt, June, 8. 2011

As summertime draws lazily upon us, with its beckoning sunny days and even longer nights, the rental season in Spain reaches its peak. With this in mind, I thought it would be a good idea to summarise in a brief article the most common faults that both landlords and tenants stand to make on renting in Spain.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of June 2011

 

 

Introduction

Despite what poet Thomas Gray would have us believe, “Where ignorance is bliss, ’tis folly to be wise”, this line of thinking when it comes to renting in Spain can get you into trouble. Some of these slip-ups, besides being expensive, may even lead landlords to be criminally prosecuted by their own tenants in the most extreme cases.

Many problems can be traced to the fact that landlords remain largely unaware of the legal implications of renting out a property in Spain. What renting entails is actually losing possession of the property for a certain pre-agreed period of time in exchange of perceiving a regular income. This means you can no longer enter the property for the duration of the rental if it is not with the express permission, preferably in writing, of your tenant, regardless if he’s up-to-date or not with the rental; that is not an issue. Landlords cannot enter their own property even if it’s just for ‘inspection’ purposes without the said permission. This frequently overlooked blunder is single-handedly responsible for stemming most of the letting misunderstandings.

There are many more that I could have listed below, but for simplicities’ sake I’ve decided to weed them out to keep the article sharp and short. Read further to help avoid turning renting into ranting under the sun.

 

Landlord’s Top Five Mistakes

 

Many expat landlords are unaware of the different mechanisms in place to secure rental income and often fail to implement them in their rental agreements which can leave them unprotected if the tenant does not, or cannot, pay the rent. These mechanisms are explained in-depth in my article Letting in Spain: The Safe Way.

Most blunders made by landlords are related to their tenants becoming non-paying tenants. This can understandably exert great pressure on landlords, especially if they are relying on the rent to offset it against their mortgage repayments, which can easily lead them to take rash decisions that may come back to haunt them later on in life.

1. Shutting off utilities (water & electricity). Landlords often feel the urge of doing this on their tenant missing out on their rental. If you happen to do this your tenant can report you to the police. Doing this may be labelled as either coercion or harassment or even both. Your tenant can prosecute you criminally on doing this and you may find yourself being remanded in custody. So maybe you ought to think twice before walking down this path. If the utilities are in the name of the landlord and he stops paying them on purpose to mount pressure on the non-paying tenant he can equally be prosecuted as it’s equated to shut-off the utilities physically.

2. Changing the locks. Same as above, it may be regarded as either coercion or harassment or both and you may be prosecuted criminally for this.

3. Taking justice into their own hands. Evicting non-paying tenants with the assistance of newly-acquired “acquaintances”. Landlords may feel tempted to take justice in their own hands and break-in their own property assisting the decision-making by bringing in some ad hoc square-jawed tattooed acquaintance as backup. This is seldom a bright idea and may land you and your “friends” in a Spanish jail for unlawful entry (trespassing). The only – legal – way to evict your tenant is to hire a lawyer and initiate a formal eviction procedure through the Spanish law courts. New laws have been enacted to help speed-up the eviction procedure. But on average it is still taking 5-9 months depending on how clogged local law courts are.

4. Entering the property under the guise of a ‘routine check’. Although it may be highly tempting to take a quick peak from time to time, especially after a noisy summer party that’s kept the neighbourhood up all night, it is seldom a good idea.“It’s my property and I will enter it when I please.” I’ve often heard this line from disgruntled landlords who just cannot stand the fact they are forbidden from entering their own property in Spain if it’s not with the prior –written– permission from their tenant. You simply need their permission following Spain’s Tenancy Act regardless if they are paying the rent or not.

5. Eleven-month contracts are short-term and watertight. Erm, I’m afraid not. This single blunder is responsible of many legal problems at a later date. What qualifies a rent as either short or long-term is not the fact that it’s labelled one way or the other. What matters really is that the tenant and his family are not using the property as their main residence and this must be expressly built and worded into the Tenancy agreement so it’s truly a short-term tenancy. Tenants can successfully challenge at court short-term 11-month contracts morphing them into long-term ones (5 years). During the next 5 years you will be unable to recover possession of the property whilst the tenant pays being forced to rent it out. The new Express Eviction Law has now amended this and allows landlords to introduce clauses that waive the statutory long-term requirement of 5 years i.e. a clause whereby it is stipulated that the property will be needed for the landlord’s own use or for that of his family. However, if after 3 months’ time the landlord – or his family – has not taken possession of the property, he will be forced to re-install his ex-tenant and award him a suitable compensation to offset the expenses of the move.

Luxury rentals waive this protection as Spain’s Tenancy Act does not apply to them; luxury rentals are ruled by the will of the parties. EDIT: luxury rentals in legal terms no longer exist after an amendment to the Tenancy Act.

 

Tenant’s Top Five Mistakes

 

To be fair to landlords tenants also make their fair share of mistakes.

1. A verbal Tenancy contract is better than a written one. Not really, no. I honestly don’t know where tenants get this idea from. In Spain verbal contracts are equally valid as written ones. The problem lies when there are disagreements. It’s very difficult to prove what was actually agreed in a verbal contract i.e. landlord pays for the utilities. It’s in the best interests of both tenant and landlord that rental agreements are always put in writing. Tenants have a right to demand having a verbal contract put in writing by their landlord.

2. I can always offset the 2 months’ rental security deposit against my unpaid rental. No you cannot. That two month’s initial security deposit serves its own legal purpose and at no time can be used to compensate rental shortfalls.

3. I can always leave the property ahead giving 30 day’s notice. Yes you can but you will be held liable to pay for the remaining months you agreed to rent i.e. say you signed an 11-month contract and on the third month of the let you give notice that you will be leaving ahead of the expiration of the agreed rental. You may leave ahead but you will owe the let for the remaining 8 months despite you giving notice; it is unrelated. Some landlords will pursue you legally if you fail to pay the balance owed while others will rather turn a blind eye thinking it’s hardly worthwhile all the legal hassle. The sum owed will normally be the decisive factor on whether legal action is warranted. Whatever the case may be, you ought to know that legally you owe the outstanding months and if you decide not to pay them you are taking a legal gamble that may or may not payoff.

4. Deducting damages from the rent. All tenants feel tempted to fall for this one.

Classic examples of this would be:

i) After heavy rainfall I’ve had this terrible damp patch with an aggressive mold growth which has cost me €300 to be removed. Plus my new laptop got damaged as a result (€1,000). I’ll deduct the €1,300 from my let to make up for both.
ii) The washing machine broke down and cost me €150 to repair.
iii) My landlord is not paying the community fees and as a result I’m now being disallowed from using the complex’s facilities i.e. swimming pool. I’ll just pay €300 less a month to offset for this.

I could put more real-life examples of the queries I’ve received over the years but I think that will do for now. At no time can a tenant decide unilaterally to pay less rent or withhold part of the rent to offset against these unforeseen damages or expenses. First of all some damages have to be paid, under law, by the tenant himself; especially those relating to the normal wear and tear on renting out a property (Art 21 of the Urban Tenancy Act as well as Arts 1.563 and 1.564 of the Spanish Civil Code). It is seldom a good idea to practice a retention or withhold amounts when you feel it’s appropriate without having the landlord’s prior agreement in place, in writing. This may even be a cause for legal eviction as you are effectively breaching the signed Tenancy agreement.

5. The property is being repossessed and I’m being asked by the lender to vacate it. Actually you don’t have to in long-term tenancies (three plus years). Following Art 13 of Spain’s Tenancy Act it allows tenants to stay in the property until they complete 5 years providing it is truly a long-term tenancy (i.e. your usual place of abode). This is true for urban rentals signed after the 1st of January 1995. The bank after repossession takes on the role of landlord. Lenders on repossessing the property must respect by law outstanding tenancy agreements. The tenant must continue paying the rent to the new owner, the bank. Obviously both tenant and bank (now landlord) are free to reach an amicable settlement whereby it is agreed the former leaves the property ahead of the statutory five-year limit in exchange of a suitable compensation.

Renting in Spain: Top 10 Mistakes – In Conclusion

Spain’s Tenancy laws are biased towards tenants for historical reasons that need to be addressed immediately. Government, both at a national and regional level, has taken notice of this and are regularly passing new laws, i.e. Express Eviction Law, with the aim of streamlining rental procedures. There is still much to be accomplished if Spain’s rental market is to become as strong and relevant as that of fellow European countries.

Landlords and tenants should always seek legal advice on renting property, particularly prior to making rash decisions related to non-payment so as to avoid costly mistakes.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, inheritance, taxation, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

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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. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.011 © Raymundo Larraín Nesbitt. All rights reserved.

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Landlord: Keys to Successful Rental Income

Raymundo Larraín Nesbitt, January, 31. 2008

Article copyrighted © 2008. Plagiarism will be criminally prosecuted.

By Raymundo Larrain Nesbitt
31st of January 2008

 

Over the last decade we have witnessed an explosive growth in the rental market in Spain. Coastal areas are awash with properties to let by expat landlords. However, many landlords are unaware of the different mechanisms in place to secure such rental income and therefore often fail to implement them in their rental agreements, which leaves them unprotected if the tenant decides to stop paying the rent. Mechanisms such as bank guarantees and rental income insurance enable them to rent out their property safely. In this article we strive to deliver some legal insight by identifying and employing such mechanisms in your own advantage.


The problem with defaulting tenants in Spain

Dafaulting tenants have become a real nuisance for landlords who rent out their Spanish property. The number of tenants who default on their monthly payments is increasing at alarming rates, to such an extent that it is considered the main reason as to why landlords don’t let their properties.

If your tenants stops paying the rent, it is advisable to start an eviction process as soon as possible. An eviction process can take anything ranging from 10 to 18 months. The loss of rental income during this period of time can leave the landlord in bad financial shape, and things may turn uglier if the rental income is partly being used to pay off a mortgage: if the monthly payments are not met, the bank could repossess the property. A horror story that many a landlord can be faced with.

Tips on how you can secure your rental income in Spain

There are different options you can implement either to reduce the risk of not being paid your monthly rental income, or completely eliminating it. The cost varies depending upon the level of protection each option offers, which ranges from ‘free’ for the most simple tenant credit checks, to the most expensive rental income insurance options (which can be up to one month’s rent fee for a one year insurance rental policy)

These options are the following:

  1. Know your tenant. A good starting point is to know well your prospective tenant. This is something which is done in the UK although not in Spain, safe in large cities such as Madrid and Barcelona. It would be most advisable to request from your prospective tenant a copy of their last payslips much like in Britain is done. If he has a labour contract (indefinido) he is –generally- more financially reliable than a self-employed (autónomo). Additionally, requesting a letter from their bank manager as to ascertain their financial ability might be a good idea.

    These easy steps help to weed out professional squatters who move around the country only paying the first month’s rental or two and then stop paying all together. Unfortunately Spain’s laws are biassed to protect the tenant, not the landlord, and some unscrupulous people take advantage on this fact.
    By law you are entitled to request a month’s rental as a deposit following art. 36 of the Rental law for dwellings which the rental agency normally withholds.

  2. Agree to setting up an Arbitrage mechanism.- May be included in the contract’s clause as an alternative option in lieu of litigation. The ruling by the abitror compels both parties and cannot be appealed. This option is available mainly in large Spanish cities and saves considerable time.

  3. Implement a rental Bank guarantee. Our advice for landlords is to require from a prospective tenant a rental bank guarantee or “aval bancario”. This would ensure the landlord against the tenant defaulting. The landlord may execute said guarantee and the bank would be obliged to pay them immediately as it is an executive title in Spanish law. The bank in turn would claim this amount on the tenant. This bank guarantee should ideally be made to secure the following 5 years even if the tenancy agreement is for short term (eleven months).

    However there is a catch, claiming on this rental bank guarantee is no substitution for an eviction procedure, rather a compliment to it. For example, the tenant may default on the second month, the landlord after having sent to the tenant letters claiming the owed rental to no avail, executes the bank guarantee (which secures for example 6 months rental). In despite of this, the tenant will still be living in the property. The landlord would then have to wait until the six months are over to initiate an eviction proceeding at the court.

    Ideally rental bank guarantees should be exercised after the eviction ruling, not before. It is common place that tenants on Spanish coastal areas have, naturally, no assets of their own so after an eviction process the landlord is still owed the lost rental income. The bank guarantee could then be claimed on to offset this rental loss. The tenancy contract would also have to be terminated of course for breach of contract according to art. 1124 of the Civil Code. We advise you to hire a lawyer on doing this.

    In the current economical context in which -specially in coastal areas- tenants are defaulting increasingly this bank guarantee would act as a safety net for landlords ensuring payment once the eviction process is over helping to take off stress.

    Is a rental bank guarantee suitable in all cases?

    No it isn’t. It is suitable for long term tenancy’s (eleven months renewable) not for short periods such as summer lets (one month or a couple of weeks).

    A bank guarantee is expensive and requires the tenant to deposit lump sum an amount of money at their own bank, typically 12 months rental, which is left in custody. On top of this, banks normally charge 1% of the amount, notary fees, opening interest and a quarterly interest. Not all tenants find themselves in a comfortable financial position to provide this bank guarantee either because they simply do not have the money or, even if they do, are unwilling to have it tied-up until the guarantee elapses which could be as long as 5 years.

    Does the bank guarantee ensure the tenant’s financial ability?

    No. The bank at no time carries out a due diligence on the tenant’s assets and financial ability. It only guarantees that the tenant deposited an amount of funds equivalent to say twelve months rental which you can claim on default. The tenant cannot dispose of said funds until the bank guarantee elapses. Notwithstanding banks include clauses that might hinder the execution of the guarantee which is why we recommend you to hire a lawyer to help arrange these guarantees and avoid abusive clauses which render the guarantee virtually unclaimable.

    At what stage is this bank guarantee handed over to the landlord?

    This guarantee is handed over by the tenant at the time of signing the rental agreement, never after. The landlord will hold it and deliver it back once the tenancy is terminated satisfactorily with no pending amounts owed.


  4. Arrange a Rental Insurance. In Spain there are companies that offer relatively inexpensive tenancy insurance charging only a one-time annual fee equivalent to 60%-100% of a monthly rental. This insures the landlord against the tenant defaulting, and covers lawyers’ fees during the eviction process (up to around 2,100 €). They also insure different scenarios such as the tenant destroying furniture during the eviction process up to a pre-agreed capped amount (normally 3.000 €).

    These insurance companies do evaluate the credit risk of the prospective tenant unlike banks with rental bank guarantees.

    i.e. A typical monthly rental of 900 € would mean you would have to pay one annual payment of 900 €.


Duration of Spanish Rental Contracts

In Spain short term lets (typically 11 months) have been devised to waive the Rental Act (LAU). The LAU stipulates that any tenant staying longer than a year in a property without the landlord’s opposition is entitled legally to stay in it for the next 4 years making a total of 5 years (long term let). That is why a bank guarantee should last ideally 5 years even if the tenancy is for a short term let (eleven months).

Having signed a short term let is no guarantee as in case of default it might transform itself into a long term let if the landlord doesn’t act fast enough. That is why an eviction process becomes a necessity in case of unpaid rental. Landlords in general cannot afford to have someone occupying their property for the next five years. This is where a lawyer is needed.

 

Conclusion

Finding a tenant to let your property is no major feat albeit evicting one takes its toll both in time and money.
That is why it is most advisable to hire the services of a lawyer from the on start, before you even begin searching for a tenant. A good independent lawyer will draft a rental contract covering diverse issues such as bank guarantees and rental insurance protecting your interests even if the tenant defaults.

Besides, there is also a cost of opportunity in which your property will be occupied by the tenant during the eviction procedure for the next 10-18 months in which you will be both losing rental income and still be obliged to face mortgage repayments.

Hiring a lawyer may well mean the difference in saving yourself thousands of pounds in legal fees and expenses as well as removing all the associated stress of a defaulting tenant.

 

Are you Renting out your property?

We advise you to hire the services of a lawyer to ensure you are fully protected if your tenant should stop paying the rent. Lawbird Legal Services offers the Drawing up of a Rental Contract service, which includes options such as implementing rental bank guarantees or setting up rental income insurance policies. If you are interested in this service, please contact us.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in litigation, conveyancing, taxation, and inheritance. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

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