August 19, 2017
Please can you advise accordingly if possible?
Our ex-matrimonial home on the Costa Blanca has been rented out for some years through a rental agency.
We have been through a divorce here in the UK and the courts here in Britain are saying that the ex-matrimonial home must be sold and shared equally after all discharges and fees have been paid in Spain.
We had tenants and their contract finished on 10/6/2017, however the rental agency have now said that the tenants have rights and can rent the property for a further three years, also my ex-husband has agreed to this without my consent.
Also I have not under any circumstances signed any tenancy agreement in the past three/four years either and I have since found out that there has been a further three tenants in the property not including the present tenants who I believe have been in for 14 months!
The only tenancy agreement I signed was the original one back in the beginning with the rental agency, agreeing for them to find us a suitable tenant, they then found a tenant and we signed them to be in for a period of 11 months only.
Unfortunately, those tenants did a moonlight flit and also took with them a lot of our things and left the property in a terrible state, which ended up costing us a lot of money. The rental agency did not take a bond and failed to carry out any inspections during the tenancy either!
Where do I stand with regards to this today, i.e… is what the rental agency are now telling me correct ?
We have sent you letter to our legal expert Clive Webster of Webster Asesores SL…. Here’s the reply:
The fact that a divorce settlement is in place in the UK, regulating how the assets are to be divided after the divorce, and in particular what should happen to the house that was the family home, and in this case, its sale and distribution of the sale proceeds once all the expenses have been settled, such as taxes and legal costs, does not affect the juridical contract that was agreed upon with the tenants.
The rental agreement has to be acknowledged during its period of validity and it is not affected by a court sale order or, in its absence, the sale of the property has been agreed to, without the court order.
Notwithstanding the above, you should inform in writing to the agency that it is your wish to not rent the property anymore and remove it from the rental market, informing them that you do not wish to renovate the present contract any longer than the law allows.
You also mention that you have not signed any rental contract but it is possible that your husband did sign it, or maybe when the instructions were given to the agency you authorized him to sign on your behalf.
The general legal regulations of rental of properties in Spain, which might be useful for other readers are summarised as follows:
Four years have passed since the law 4/2013 of the 4th of July came into being, which were passed in order to try to make more flexible and increase the rental market, which modified, amongst other, the minimum duration period of the rental of homes regulated by the LAU (Ley de Arrendamientos Urbanos).
In view of this, the rule for rental contracts signed after the 6th of June of 2013, established that the duration of the rental contracts would be free and agreed upon by both parties. However, if the rental period was less than three years, once the contract reached its end, it would be renewed for the same annual period until the rental period was of a minimum duration of at least three years (unless the tenant informed the owner that they had no intention of renovating it, with a minimum of thirty days’ notice from the date of termination or any of its renewals).
Therefore, for those rental contracts signed immediately after the Law came into force, its extinction will be near it was agreed that it had a period of validity of less than three years and was subject to the renewal by decision of the tenant. The period of duration starts from the date the contract was signed or the date when the property was handed over to the tenant if this was later, and it is up to the owner to prove when this took place.
If the contract does not include a period of validity, legally it will be understood to be valid for a period of one year.
As an exception to the legal contract renewal right the tenant has, it cannot be enforced if the owner informs the tenant that he needs the property for his main residence or that of the direct family. This notification to the tenant has to take place at least two months before the property is required for personal use and the tenant has to hand it back, unless another agreement is reached.
It is possible, however, that your husband could buy your share from you. With a divorce settlement in place, there would be no tax to pay only Notary, land registry and legal fees.
Please note this reply is intended for informative purposes only and we strongly advise any readers to seek professional advice prior to taking any action.