In the realm of rentals, numerous misconceptions and myths have evolved into illegal market practices. A prominent one among these is termed as "the 11-month myth," which mistakenly believes that merely altering the contract's duration can change its legal framework. With the new Housing Law coming into effect, we've noticed a resurgence of this belief.

The primary reason for this practice stems from the Urban Leases Act, which establishes two distinct regimes for contracts. On one side, we have "housing rentals" governed by a set of mandatory rules. On the other, there are "rentals for uses other than housing," where no mandatory rules exist, and parties can agree as they see fit.

Signing a housing lease for 11 months does not exempt one from the mandatory regulations set by the LAU (Urban Leases Act).

One significant reason people opt for a seasonal lease is the contract's duration. In housing leases, a binding legal regime mandates the lessor to automatically extend the contract up to 5 years, followed by an additional 3 years.

Despite consistent jurisprudence indicating such attempts as a violation of the law, some still believe this simple trick can outsmart the legislation. However, achieving this isn't straightforward. For instance, in the SAP Vizcaya verdict of October 3, 2013, the court highlighted that portraying the contract as a seasonal lease is nothing but a crude and deceitful tactic by the lessor to evade the mandatory terms outlined in the LAU.

The essence of the contract: the cause, not the duration

If, as observed, duration doesn't distinguish between a housing and seasonal lease, how can we differentiate them?

A verdict from SAP Barcelona on June 1, 2004, states, "Consistent rulings by the Supreme Court, regularly followed by the Provincial Courts' jurisprudence, clarify that the classification of a seasonal lease doesn't depend on the agreed duration but on the purpose of occupation, unrelated to the tenant's regular residence and being intermittent; hence the lease caters not to the tenant's housing necessity but to occupy it occasionally due to distinct circumstances than setting up a permanent residence."

Therefore, the contract's duration isn't the focal point; it's the underlying motivation that led to its inception, commonly referred to as the contract's cause in legal terms.

A housing lease can last 6 months, while a seasonal one can span 2 years.

In the STS verdict of December 15, 1999, it's mentioned that the fundamental aspect of a seasonal lease is its temporary occupation for varied reasons, ensuring the occupancy addresses circumstantial, intermittent, or accidental needs and not the permanent residence requirement.

Moreover, the previously mentioned SAP Vizcaya ruling from October 3, 2013, denotes the defining elements of a seasonal lease: the negative being not constituting the tenant's regular residence and the positive being the occasional occupancy periods, always interrupted by the preference given to the primary residence.

Thus, if a landlord and tenant wish to sign a seasonal lease, they must adequately substantiate the contract, clearly explaining the reasons for opting for one regime over the other. Hence, standard contract models or clauses won't suffice; a genuine reflection of both parties' circumstances at the contract's inception is crucial.

Among the valid reasons for a seasonal lease are non-permanent housing needs due to (i) holidays, (ii) temporary relocation (for work, studies, etc.), or (iii) a temporary need for another property due to renovations in the primary residence. A common thread in all these scenarios is the temporary housing requirement.

What if circumstances change?

Regardless of the contract type signed, would the applicable regime change if the circumstances leading to the lease change?

Jurisprudence has extensively examined both possibilities:

Concerning the potential transition from a seasonal to a housing lease, the SAP Guadalajara ruling of July 19, 2012, firmly states that the contract's regime "remains unchanged even if subsequently, one of the litigants intends to transform said contract into a housing lease, as evidenced by the change in registration."

On the contrary, if a housing lease is deemed a seasonal lease due to the tenants' sporadic use, the STS ruling of April 4, 2011, indicates that "for an objective novation of the contract to exist, the intention to novate must be unequivocally expressed by both parties," establishing the principle that "for a housing lease to be considered novated and transformed into a seasonal lease, a clear intention to novate from both contracting parties is essential."

Therefore, under no circumstances can an unforeseen change of events be construed to modify the applicable legal regime, provided the lease wasn't executed in violation of the law.

desalvador | Real Estate Lawyers Mallorca