You may be aware that under Spanish law, a contract may contain any clause as long as it’s legal and both parties have agreed to it. The first condition is usually fulfilled, but all too often, the second isn’t and as a result, the tenant finds themselves tied up in a Spanish property rental contract with abusive clauses.
To help you avoid these, this article lists the main abusive clauses to look out for. And of course, the best advice is to never sign a contract in Spain without independent legal advice. If you’d like an expert to review your Spanish property rental contract, get in touch with our friendly team.
What are abusive clauses?
This term is applied to clauses that do not respect the rules established by law as non-negotiable. Non-negotiable rules are passed when a fundamental right needs protecting such as the right to a home.
Abusive clauses are biased in favour of one of the parties, in this case, the landlord. Their legality is dubious – in fact, many are overturned in court – but nevertheless, they exist all too often in contracts.
Duration of a property rental contract
Under Spanish law, a rental contract may have any duration agreed by both parties. However, if the period is less than five years (if the landlord is an individual) or seven (if the landlord is a company), the contract is extended automatically for periods of five or seven-year.
An abusive clause in this case: if your rental contract in Spain does not state a time period or is less than the stipulated duration. If, for example, the contract says it’s valid for three years instead of five and you can prove that you didn’t negotiate this clause, a court would declare it null and void.
Find out what to expect when renting a property in Spain.
Cancellation of the rental contract
By law, you must pay the rent for at least six months after signing the contract. Once your six months are up, you may leave at any time afterwards as long as you give the landlord 30 days notice.
An abusive clause in this case: if the contract includes a clause stating that you must stay for a minimum of any time longer than six months.
Compensation for early cancellation of the contract
Spanish rental law allows the landlord to get compensation if you cancel your rental contract before the end of the first year. The landlord is entitled to one month’s rent for each remaining year of the contract. For example, if you have a contract for five years and leave after one, your landlord can request you pay four months’ rent as compensation. However, the contract must contain a clause stating this.
An abusive clause in this case: if the contract makes no mention of compensation for early cancellation and your landlord demands you pay it.
Early termination of the contract
Under usual circumstances, a landlord cannot occupy a rental property until the end of the contract or if you have terminated the contract by leaving earlier. There is one exception to this rule and that is if the landlord needs the property for his own use or for a family member. However, the contract must include this clause and the landlord must give you at least2 months’ notice. The clause is only applicable after you have been on the property for at least 12 months.
Note that these rules only apply to landlords who are individuals, not a company.
An abusive clause in this case: if the contract says that the landlord may terminate the contract early for any other reason than the one stated above.
At Costaluz Lawyers, we’re specialists in helping foreigners avoid abusive clauses in property contracts. Get in touch to find out how our expert team can assist you.
The deposit
By law, the landlord can only request one month’s rent as a deposit for the rental.
An abusive clause in this case: if a clause in the property rental contract states that you must pay more than one month’s rent as a deposit.
Paying rent in advance
Spanish rental law stipulates that the landlord may only request one month’s rent in advance.
An abusive clause in this case: if the contract obliges you to pay more than one month’s rent in advance.
Compensation for default on rent payments
If you fail to make a monthly payment, your landlord has the right to start eviction proceedings against you. He also has the right to request you satisfy the payments. However, he cannot ask for compensation for the lack of rent from you.
An abusive clause in this case: if your contract states that your landlord will receive a certain percentage of the monthly rent from you if you get behind on your payments.
Updating rental rates
The only change that a landlord may make to the rent during the first five or seven years is to increase it by the rate of inflation (IPC in Spanish). However, if both parties haven’t agreed to this or the contract does not mention the annual increase, the landlord cannot make any changes to the rental rate until the contract expires.
An abusive clause in this case: if your contract states that your landlord can increase the rent by anything other than inflation.
Landlord access to the property
As soon as you have signed the rental contract, the property is for your use only. The landlord may only enter it if you give him express permission.
An abusive clause in this case: if the contract says the landlord may enter the property at any time during your lease.
Worried your rental contract in Spain contains abusive clauses?
Before you sign on the dotted line, get in touch with our expert legal team for professional advice. With our help, you will be able to renegotiate the contract to ensure it has no abusive clauses and that your interests are fully protected. Contact us now.
Maria Luisa Castro
“La recisiòn anticipada del presente contrato por parte de los arrendatarios puede estar sujeta a una penalización con la pérdida de la fianza.”
I signed the contract in December 2020. I need to give notice as circumstances have changed and we need to leave quickly. Will he take the whole fianza?
Hi Simon,
I need to see the type of contract you signed before giving you a precise answer