The passing on of expenses to the tenants

Passing on tenants
(Leasing contracts signed under the 1994 Urban Leasing Law (LAU’94)).

In order to identify the possibility of passing on certain expenses to the tenant, we must differentiate according to the destination given to the leased item:

Housing Leases

To determine the expenses likely to be passed on to current tenants, it is necessary to analyze the contracts in question and the clauses that, where appropriate, regulate the expenses and repercussions object of this article.

The regulation of the LAU’94 in relation to rented apartments for housing is more restrictive in terms of the limitations imposed on the landlord when imposing certain clauses on the tenant -in addition to submit to the imperative precepts contained in Titles I, IV and V of the LAU, are governed by the provisions of Title II of the aforementioned Law, failing that, by the will of the parties and additionally by the provisions of Article Civil Code.

In this sense, we cannot forget that any contractual clause contrary to the Law of reference, will be declared null, considered as not put (art. 6 LAU’94).

Possibility of passing on general expenses and individual services (art. 20 LAU ´94):

• The parties may agree that the general expenses for the adequate maintenance of the property, its services, taxes, charges and responsibilities that are not susceptible to individualization and that correspond to the leased property or its accessories, are the responsibility of the lessee.
• In buildings that are not under a horizontal property regime, it will depend on each participation fee. Otherwise, such expenses will be those that have been assigned to the leased property based on its surface area.
• To be valid, this agreement must be in writing and determine the annual amount of said expenses as of the date of the contract.

Within this category of expenses are, among others, the IBI, garbage fee, cleaning the building, insurance, etc.

As we can see, it will be necessary to comply with the agreement between the parties and if the agreement complies with the legal limits established for this purpose.

Possibility of repercussion of maintenance and conservation works, improvement (arts. 21 to 24 lau’94):

• According to the Law, the small repairs required by the daily use of the home are the responsibility of the lessee.
• The conservation works – necessary repairs without which the leased property would be unusable for use, and would even be destroyed (for example, boiler replacement, repair of water pipes, etc. )- are the responsibility of the landlord/owner.

Except those works whose need is attributable to the lessee (improper or negligent use of the common or private elements of the leased property).

• The improvement works (not essential for the use and enjoyment of the home; for example, construction of a swimming pool) are, in principle, in charge of the lessor, unless they are carried out at the express will of the lessee.

Notwithstanding the foregoing, article 19 of the Law establishes thepossibility of raising rent for improvements,unless otherwise agreed, and if , among other circumstances, three years of the contract have elapsed.

In short, in principle, maintenance and improvement works are the responsibility of the landlord, except for the exceptions indicated, with the possibility of a proportional increase in rent if the requirements are met necessary.

Leases for use other than housing

In this type of contract, the landlord does not have as many limitations when it comes to formalizing the contractual document. Priority is given to the freedom of agreements between the contracting parties – this type of lease is governed, firstly, by the will of the parties, failing that, by the provisions of Title III of the Law and, additionally, by the provisions of the Code Civilian.

Possibility of passing on common expenses

For lease contracts of this type there is no article comparable to the aforementioned art. 20, so that in terms of general expenses and services payable to the lessee, freedom of agreement between the parties prevails.

Possibility of repercussion of maintenance and conservation works, improvement (art. 30, reference to arts. 21 to 24 and 19 LAU’94) :

In the absence of an express agreement, the provisions of the Law for housing leases apply.