On December 18 it was published in the BOE Royal Decree-Law 21/2018, of December 14, on Urgent Measures regarding housing and rent, coming into force the next day, on December 19, affecting the housing lease contracts that were signed as of its entry into force, and even those prior to that date, which by agreement, would like to benefit from the new regime.
However, the validity of this rule has been really limited since a few days ago, specifically on January 22, it did not obtain the necessary validation in the Congress of Deputies, being automatically repealed.
The situation created implies that, having been in force for 30 days, the new regime provided by the aforementioned Royal Decree Law applies to the lease agreements concluded Between December 19, 2018 and January 22, 2019, or to the previous ones that during its term and by agreement, would have chosen to benefit from this regime.
However, the “previous” regulations contained in Law 22/29, of November 1994, on Urban Leases - are applied again to the lease agreements concluded as of January 24 - and already repealed. effective again.
In summary, the most important aspects to consider are the following:
1.- The repealed norm RDL 21/18, distinguished between lessor natural or legal person, among other aspects, when establishing the minimum duration of the contract.
The current norm did not distinguish and, again, this distinction ceases to exist.
2.- The repealed rule incorporated as a novelty the category of “large homes” and expressly excluded from its scope the tourist rental of homes.
3.- The repealed rule provided for initial duration, which could be achieved with mandatory annual extensions for the landlord and optional for the lessee, up to 5 years (when the landlord was a natural person) and up to 7 years (when the landlord was a legal entity).
With the current standard, the minimum duration is 3 years, without distinction.
In relation to the duration of the lease, it is always important to keep in mind that, in accordance with current regulations, there is the possibility of agreeing compensation in the case of the tenant's withdrawal, after 6 months of the contract. The lessee would thus be obliged to remain a minimum of 6 months in the property.
Any agreement of minimum duration, for a longer term, would be void. Of course, if you want to force a greater permanence, the parties could agree that, in the case of withdrawal before the agreed total term, the lessee must compensate the lessor with an amount equivalent to a monthly rent for each year of the contract remaining to be fulfilled. Time periods of less than one year will result in the proportional part of the compensation.
4.- After the initial duration of 5 or 7 years provided for in the repealed RDL 21/18, a additional extension (if you have not mediated notice) of 3 more years.
In the current rule, the additional extension is annual again.
5.- With regards to rent, The repealed regulations RDL 21/18, provided for a limitation to the update of the rent in the contracts with reduced income.
Current regulations do not provide this assumption. The rent will be updated after the first year of the contract, if it has been agreed by the parties.
6.- With regards to Bond there were also relevant changes.
Both the repealed and current regulations establish the obligation to provide legal bond equivalent to a monthly rent in the case of housing and two monthly payments, in the case of leases other than housing. To this legal bond can be added additional guarantees that ensure the fulfillment of their obligations by the lessee.
In the case of the repealed rule, a limitation of additional bonds, so that, except for long-term contracts, exceeding the minimum expected (5 and 7 years depending on the condition of the lessor), the value of this additional guarantee could not exceed two months of rent.
Once the RDL is repealed, the limitation of the guarantees required of the lessee is again abolished, which will be subject to what the parties agree or, rather, what the lessor requires, with the possible abuses, or greater guarantees, that derive from it , according to the point of view.
7.- As for formalization expenses of the contract, the repealed regulations established that they were in charge of the lessor, in the case of being a legal entity.
Current regulations do not expressly regulate this point.
8.- The repealed regulations introduced modifications to the Horizontal Property Law, which meant the obligation to contribute to accessibility works, the obligation to establish a reserve fund not less than 10% of the ordinary budget of the community, as well as the possibility of limiting, by agreement of the Board of Owners, the tourist rental activity in the building on a horizontal property basis.
9.- The repealed regulations introduced amendments to the Civil Procedure Law taking into account the "vulnerability" of the tenants, and in their protection.
10.- It also introduced modifications to the Consolidated Text of the Law regulating Local Haciendas that affected the payment of IBI in the case of residential properties with limited income.
11.- Finally, it introduced a modification in the Consolidated Text of the Law of Transfer tax and stamp duty, which meant the exemption of the tax in the subscription of housing lease contracts for stable and permanent use that does not apply with the regulations in force.
It is not usual for Congress to not validate a Decree, even more because of a “wake-up call” from the main partner of the Government. The consequences are, as we have seen, a return to the previous situation. During the very brief 30 days that the regulation lived, under RDL 21/18, lease contracts have been signed under conditions that otherwise would not have been signed: Durations of 5 or 7 years, 3-year extensions, bonds limited in amount, etc. These contracts, signed under the protection of the repealed regulation, will be exceptionally regulated by the provisions of RDL 21/18. The remaining contracts (before and after the temporary window of validity of RDL 21/18), will continue to be governed by the previous regulations, again in force. The situation, however, raises important legal questions, as there are already those who even wonder if, ultimately, the signing of a lease could be voidable due to a defect in the consent of those who trusted that the rule would be ratified. .
The moral is clear, from now on it will be necessary to have an extra prudence and not carry out operations under a rule that, although in force, is issued by a minority government that can be rejected or not validated.
