Term of rustic leases and their extensions
We considered the duration of rustic leases and their extensions as an object of analysis, for which it will be essential to attend to the initial date of the lease.< /p>
Those leases beginning on a date prior to May 27, 2004, will be governed by the provisions of Rustic Leasing Law (LAR) of 1980, however, those arranged after said date will follow the agreement of the new Rustic Leasing Law (LAR) of 2003.
The change in regulations is important, since it substantially alters the regime applicable to rustic leases, and especially regarding the duration of the contracts and its extensions.
Leases with an initial date prior to May 27, 2004
Next we will see what is established by the Rustic Leasing Law of 1980 applicable to contracts prior to May 27, 2004.
Art. 25 of the aforementioned law regarding the duration of leases:
“1. The leases will have a minimum duration of six years.
2. After the contractual term, the lessee will be entitled to a first extension for six years and successive extensions of three years each one, understanding that you use this right if at the end of the initial term or that of each extension you do not renounce continuing in the lease, except as provided in the following article. However, the lessee may terminate it at the end of each agricultural year, giving the lessor six months’ notice.”
Therefore, the law would grant as a right of the tenant a minimum duration of 6 years, and subsequent extensions (6 years the first, and 3 years successive ones) in the absence of termination of the contract by the lessor.
Sometimes it happens that the text of the lease does not match what is stated in the law. As there is a contradiction between the legal wording and what was agreed between the parties, it is appropriate to study which of the two provisions prevails over the other.
For example, if a rural lease establishes a first extension of 3 years, instead of 6 as the law says, we could understand that making use of your freedom contractual , the lessee waived his right to first extension of 6 years, reducing it to just 3.
In order to elucidate the validity of such waiver, it is convenient to analyze if the agreement between the parties can modify the provisions of the Rustic Leasing Law.
In general we can distinguish two types of legal norms:
- Of right necessary. They are those norms contained in the law that cannot be contradicted by any agreement between the parties. Said agreements, whether or not they were drafted in a contract, are null and void and do not produce any effectiveness.
- Of right device. These are those regulations that, despite their legal status, are subject to modification by agreement between the parties. An agreement that contravenes a dispositive rule prevails over it.
Now, the rule contained in the aforementioned art. 25 of the Rustic Leasing Law of 1980 constitutes a rule of necessary law as we will see below, and therefore is not subject to change by the parties.
This is established by art. 11 of the same law:
“1. The lessee’s rights will only be waivable from the moment they can be exercised. The resignation must be recorded in a public document.
2 The rights of the landlord are waivable in accordance with the ordinary rules.”
As translated from the cited article, the lessor can freely waive all rights granted by law. On the other hand, the tenant’s rights can only be waived from the moment in which they can be exercised.
Now, how should we interpret this note? Our doctrine and jurisprudence make the following translation:
The exercise of a right gathers all use that the beneficiary of that right is entitled to make, including its waiver. Well, what art. 11 referred to above is telling us is that the tenant’s rights can only be exercised from the time they are owned, and only once the lease agreement is in force. If you do not possess the right, you cannot renounce it either. Hence, the waiver of a right expressed in the initial lease agreement is ineffective, since such a right has not yet been born. For this resignation to be valid, the law requires that it be documented after the start of the lease.
Here we collect as an example the criterion applied in this sense by the Provincial Court of Girona by resolution of October 26, 1994:
“For the current Rustic Leasing Law, the rights can be waived except in the few cases in which there is a norm of imperative content, in which the Law itself establishes the opportune preventions. The tenant’s rights can be waived as soon as they can be exercised and the waiver requires that it be recorded in a public document (article 11.1).”
Leases with an initial date after May 27, 2004
The new Rustic Leasing Law of November 26, 2003, entered into force on May 27, 2004, as established in the third final provision of this regulation. Hence, that date is the one that determines the change in applicable regulations.
The duration of rustic leases is regulated in article 12 of the regulation, with the following text:
“1. The leases will have a minimum duration of five years. It will be null and any clause of the contract by which the parties stipulate a shorter duration will be deemed not to have been entered.”
We see how the minimum duration of the lease is reduced, compared to the previous regulation, to 5 years. Once the agreed term has expired, which can never be less than 5 years, the lessor may request the return of possession of the property by notifying the lessee one year in advance.
In case of not doing so, the contract will be automatically renewed for another 5 more years, and so on.
When the lessee wishes not to renew the contract, upon expiration of the contract term or one of its extensions, he may make the property available to the owner, thus terminating the lease
However, the latter must always notify the termination of the contract with a notice of one year in advance, regardless of whether it is the end of the contractual term or any of the extensions.
In the event of a discrepancy between what was agreed in the contract and the content of the Law, the response under the new regulations must be the same as in the previous Law of 1980. Contractual periods shorter than those indicated in article 12 of the 2003 Law may not be agreed, in the terms that have been exposed.
First.- Leases signed before May 27, 2004 will have a first extension of 6 years and subsequent extensions of 3 years each.< /p>
Second.- Leases after May 27, 2004 will have an initial period of no less than 5 years, and subsequent extensions of no less than 5 years
Third.- Faced with the provisions of lease contracts that reduce the rights of the tenant, the legal tenor established in the Lease Law will always prevail Rustic.
Fourth.- To avoid a subsequent tacit extension of the lease, we recommend notifying the will to terminate the contract at the end of the lease as soon as possible, since whether you are a landlord or a tenant. With the exception that the landlord will always need prior notice of at least 1 year.