Is it legally valid an 11 month lease in Spain?

Written by: Pelayo de Salvador Morell.

10/06/2015 | Management of real estate assets

In this post we analyse whether the fact of setting a duration of less than one year allows the classification of the contract as a residential lease to be modified, and to apply the regulations on leases for use other than as a dwelling, which allow the parties greater freedom, especially excluding the application of forced extensions.

Likewise, based on case law, we point out the requirements necessary to consider a lease as a seasonal lease, and what happens in the event that the parties modify the form of use of the dwelling.

Reading time: 4 minutes

In our post on the different null and void clauses, we denounced the frequent existence of false seasonal contracts, i.e. contracts that are signed under the guise of a seasonal rental contract when in reality they are housing rental contracts. The main reason for this change is that the Ley de Arrendamientos Urbanos provides for two different regimes for contracts: on the one hand, "housing leases", with a series of mandatory rules and, on the other hand, "leases for use other than housing", in which there are no mandatory rules and the parties can agree on whatever they deem appropriate.

Signing a residential lease for 11 months does not avoid the application of the mandatory rules provided for in the LAU, so it will be extended according to the legal terms.

One of the main reasons for trying to set up a lease as a seasonal lease is related to the duration of the contracts, since in residential leases there is an imperative legal regime that obliges the lessor to automatically extend the contract for certain periods (as you can read here and here). Despite the reiterated jurisprudence that points out that these attempts are fraudulent, there are still those who believe that with this simple trick they are able to circumvent the law, which, of course, is not achieved in such a simple way. Thus, for example, in SAP Vizcaya of 3 October 2013, the court points out that the configuration of the contract as a seasonal lease is nothing more than a "mere ruse of the lessor to evade in a somewhat crude, but fraudulent way, the mandatory deadlines set out in the LAU".

The key lies in the cause of the contract, not in the duration.

If, as we have seen, the duration does not allow us to distinguish between a residential lease and a seasonal lease... how can we distinguish between them? The SAP Barcelona of 1 June 2004 indicates that "Repeated rulings of the Supreme Court have established, with a uniform criterion consistently followed by the case law of the Provincial Courts, that the classification of a seasonal lease does not derive from the term agreed but from the purpose of the occupation, which is not the occupation as the habitual residence of the lessee, but is occasional and sporadic; In such a way that the lease is made in response, not to the tenant's need to establish his dwelling, but to occupy it accidentally and at specific times due to circumstances other than the installation of the permanent residence and habitual domicile. " Therefore, what is important is not the duration of the contract, but the motivation that led to the contract, which in general contract theory, jurists call the cause of the contract.

The duration of the contract is irrelevant when it comes to its qualification: there can be residential leases of 6 months and seasonal leases of 2 years.

Let's see what the jurisprudence says in this respect:

- STS of 15 December 1999. "... the essential note of the seasonal lease is that of having agreed the use during an agreed period of time to live temporarily and for different reasons, so that the occupation responds to circumstantial, sporadic or accidental requirements that determine the contract and are expressly elevated to the condition of a cause by the parties and not to the need to live as a habitual and permanent residence".

- SAP Vizcaya of 3 October 2013. "The negative element of not constituting the habitual residence of the tenant and not having the vocation of permanence or of satisfying the tenant's need for housing; and the positive element of the temporary or occasional limitation of the periods of occupation, verified in a more or less discontinuous manner and with a greater or lesser frequency, but always interrupted by the preference given to the habitual home, the only one that covers the permanent need for occupation, as opposed to the motivations of mere convenience, comfort or caprice determining the lease".

Therefore, if lessor and lessee want to enter into a seasonal lease, they must properly causalise the contract, i.e. clearly state the cause (the reasons why they want to be subject to one regime and not another). For this reason, standardised model contracts and clauses cannot be used, and a contract that truly reflects the situation of the parties at the time of contracting is necessary. Of course, the cause justifying that it is a seasonal lease has to be a valid and real cause.

Among the valid causes for a seasonal lease, we can find the need for non-permanent housing for reasons of (i) holidays, (ii) temporary change of residence (for work, studies, etc.), (iii) temporary need for another property due to works in the habitual residence, among others. As we can see, a common element in all of them is the temporary nature of the need for the property.

What if circumstances change?

Regardless of the type of contract that has been signed, would the applicable regime change if the circumstances that motivated the rental change? Again, the casuistry analysed by case law is sufficiently broad to have analysed both cases:

Even if the form of use of the dwelling changes, the contract is not altered unless the parties expressly agree to it, unless there has been legal fraud.

- SAP Guadalajara of 19 July 2012. Regarding the possibility of changing from a seasonal lease to a residential lease, the Court categorically establishes that the regime of the contract "is not altered because subsequently, one of the litigants (...) intends to convert said contract into a residential lease, as evidenced by the change of registration".

- STS of 4 April 2011. On the possibility of a residential lease acquiring the consideration of a seasonal lease due to the discontinued use of the tenants, the Court states that "for there to be objective novation of the contract, the animus novandi must be unequivocally expressed by the parties", and establishes as case law doctrine that "for a residential lease contract to be understood as novated and to become a seasonal lease contract, the unequivocal accreditation of a desire to novate by both contracting parties is required".

Therefore, in no case can it be understood that the change of supervening circumstances implies a change in the applicable regulatory regime, as long as the lease has not been made in fraud of the law.

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