¿What can be negotiated in a rental agreement?
The regulation of urban leases is of paramount importance for the lives of many Spaniards. Although we lack an established rental culture like other European countries, partly explained by our traditional attachment to housing as a primary investment asset, the option of renting residence has been gaining ground in recent years.
In the following lines a study of article 4 of Law 29/1994, of November 24, of Urban Leases (LAU). The article reviewed here is of interest since, in a tangential way, it distinguishes which matters landlord and tenant can negotiate and which others are imperative, that is, they must respect the content of the Law, generally aimed at preserving the interests of the tenant.
Article 4. Applicable regime
- The leases regulated in this Law will be subject to the provisions of titles I and IV thereof and to the provisions of the following sections of this article.
- Respecting the provisions of the previous section, housing leases will be governed by the agreements, clauses and conditions determined by the will of the parties, within the framework of the provisions of title II of this law and , additionally, by the provisions of the Civil Code.
Excepted from the provisions are housing leases whose surface is greater than 300 square meters or in which the initial rent in annual calculation exceeds 5.5 times the minimum interprofessional salary in annual calculation and the lease corresponds to the entire house. These leases will be governed by the will of the parties, failing that, by the provisions of Title II of this law and, additionally, by the provisions of the Civil Code.
- Without prejudice to the provisions of section 1, leases for use other than housing are governed by the will of the parties, failing that, by the provisions of title III of this law and, additionally, by the provisions of the Civil Code.
- The exclusion of the application of the precepts of this law, when possible, must be made expressly with respect to each one of them.
(…)
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The imperative titles of the LAU
According to article 4.1, the imperative nature of titles I (nature of the rules, condition, assignment of the contract and sublease) and IV (deposit and formalization) of the LAU for all leases regulated by this law, whether for housing or for use other than housing. The art. 4.2 indicates that leases for housing are governed by what is determined by the will of the parties, with the limits provided by Title II. The art. 4.3 presents Title III as a device for the parties, in this case prioritizing their will. In both cases, the CC governs “in addition”.
Authors such as Rojo Ajuria (1995) and Lasarte (1996) have profoundly questioned this article. For the first, it is an article that is more confusing than explanatory, while the second criticizes its redundancy and repetitive nature: it is not necessary to remember a system of sources that should be taken for granted by any jurist
It is not true either, as Lasarte (1996) indicates, that the CC governs “in addition”. The LAU is not a special law different from others, since its content needs to be integrated with the content of common provisions, such as the CC for Contract Law. The wording of the precept is extremely unfortunate, implying that the CC is the third standard that must be interpreted, or even that the LAU is in a lower hierarchy than the CC, when it is not: the CC is nothing less than a “first degree regulatory source” for any contract, including, of course, urban property lease contracts.
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Leases for housing and leases for use other than housing
There is also a notable difference in treatment between leases for housing and those for use other than housing. The latter is constituted as a residual category of the former as a result of art. 3 LAU, encompassing activities as disparate as 24 industrial, recreational or craft, as well as second and seasonal residences, according to the Preamble to the Law.
There is also a strange ambivalence of enforceability for this category. It is clear that titles I and IV LAU 1994 are of imperative application for them. But, on the one hand, thanks to the non-need to comply with Title II, the landlord can dispense burdensome obligations such as the extension (art. 9) or the tacit renewal (art. 10) of the rental for housing, which in practice have given rise to situations of simulation of seasonal rental contracts (Judgment 45/2016 of AP Granada, of March 1, 2016; Judgment 1517/ 2013 of the TS, of March 26, 1997).
On the other hand, it is surprising that, although the bulk of the regulation of these leases is a matter entrusted to the agreement between the parties, and therefore discretionary, the legislator in a fit of severity requires double in other obligations of these leases, such as the deposit, requiring two monthly rent payments (art. 36.1) (Rojo Ajuria, 1995).
Relation to art. 6 LAU
Art. 4 must necessarily be interpreted together with an eye on art. 6 LAU:
The stipulations that modify the rules of this Title to the detriment of the lessee or sublessee are null and void, except in cases where the rule itself expressly authorizes it.
For housing leases, the provisions of titles I and IV of the LAU will be mandatory. Beyond that, the parties may self-regulate their relationship, with two limits: “that it does not affect the imperative norms contained in Title II -unless the agreement improves the situation provided for the individual- and, in the same way, when the agreed matter is the subject of of operative regulation in said Title II will be in force only when the agreement implies a benefit for the lessee” (Guilarte, 2014).
Garrido, P. (2014). The right to decent housing in Spain. Residential crisis: Origin, consequences and response of public authorities. Ararteko. Consulted October 19, 2020. Available at: http://www.ararteko.net/RecursosWeb/DOCUMENTOS/1/0_3508_3.pdf
Puig, L. (1997). “Nature of the norms”, in Lasarte Álvarez, C. (1996). Comments to the urban lease law: Law 29/1994, of November 24. Madrid: Tecnos.
Rojo Ajuria, L. (1995). Commentary on the Urban Leasing Law, Pantaleon Prieto, A. (coord.).
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