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Rental Contracts - Abusive Clauses

Posted in: Property
Author: Richelle de Wit
Tags: ,

Most rental contracts are ruled by the Ley de Arrendamientos Urbanos. There is a section for habitual homes ‘uso vivienda’ and for other uses ‘uso distinto de vivienda’. The latter category would include contracts of a temporary nature ‘de temporada’ or commercial rents for instance. Tourist rentals have their own, autonomous laws.

This LAU states that contracts can contain clauses that divert from the articles in the law, but only when this benefits the tenant, not when they would be detrimental as in that case, they are considered as abusive and null and void. Not the entire contract, but the relevant abusive article.

On the 6th of March 2019 the latest version of this law came into force but on contracts for habitual homes ‘uso vivienda’ signed before and after that date, the following is applicable:

Art. 6.
“Stipulations that modify to the detriment of the lessee or subtenant the rules of this Title, except in cases where the rule itself expressly authorizes it, are null and void.” Note from CAB: the relevant articles for these contracts are in Titulo II, articles 6 to 28.

In a rental contract for a habitual home ‘uso vivienda’, a duration of one year is agreed and at the end the tenant must leave and hand over possession of the property. This pact would be VOID since article 9 of the current LAU establishes that:

«The duration of the lease will be freely agreed by the parties. If this is less than five years, or less than seven years if the landlord is a legal entity, on the expiration date of the contract, it will be obligatorily extended for annual terms until the lease reaches a minimum duration of five years, or seven years if the lessor is a legal entity, unless the tenant expresses to the lessor, at least thirty days before the date of termination of the contract or any of the extensions, his will not to renew it. ”

Therefore, the tenant in the previous EXAMPLE may stay in the house for up to 5 years, although the clause of the contract expressly established that after one year he had to leave.

Rental law is not always easy to interpret and we recommend consulting a legal professional when in doubt about the legality of a specific clause in your contract. For landlords, please engage the services of a legal professional to provide you with a tailor-made contract that fits your needs, without any clauses that could be considered abusive.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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