Should a rental agreement be negotiated in Spain?

Generally, when we are faced with a rental contract, the parties limit themselves to talking about rent and term which, although they are the essential elements, are not the only regulation that a good contract should contain.

According to the Diccionario de la Real Academia Española de la Lengua, the lease is the "Cesión o adquisición por precio el goce o aprovechamiento temporal de cosas, obras o servicios", so rent and term are the main characteristics that define it, as has been pointed out by case law.

Despite this, the legal content of a lease is much more complex, and there are many other issues that must be taken into account when negotiating a lease contract.

Whether you are the lessor or the lessee, these other issues will undoubtedly have an impact on the development of the contract and its economic consequences, although they are difficult to foresee at the time of signing.

What governs my lease?

When reviewing a lease, we tend to look at what the lease says (what is written) and how it may affect our interests. However, it is necessary to bear in mind that in many cases it is much more important what it does not say, i.e. those issues that have not been included.

The positive content (what the contract says) is as important as the negative content (what it does not say), since in these cases it is necessary to know which law applies and what the case law says.

The fact that certain issues are not included in the contract does not imply that they are not regulated or that they cannot happen. It only means that it has not been considered appropriate to modify the legal regime, and therefore the legislation in force at the time of signing, and the interpretation of the same has been made by case law, will be applied in a supplementary manner.

What can I negotiate?

Over the last 50 years, there has been a gradual process of liberalisation of the negotiation of the terms and conditions of leases.

It has gone from a protectionist system, where the bulk of the regulation was imperiously legal, and protective of "the weaker party" - the lessee - to a system of freedom of agreement, in which the parties can freely agree the conditions of the contract, whatever the object of the lease (housing or use other than housing), although the minimum duration has now been extended once again.

Therefore, although it is possible to sign a lease contract with the simple agreement of rent and term, since the law will make up for the regulatory gaps in our agreement, it is always advisable to negotiate and freely agree on the full content of the lease contract, forming a true law between the parties that does not give rise to doubts of interpretation.

Therefore, it is advisable to carry out a prior exercise of analysis of the issues that are important to us, as all of them can be freely negotiated. In our next posts, we will analyse the main issues to be negotiated, depending on whether the lease is for residential or non-domestic use.