Cheat landlords: this is their trickery to get rid of the tenant and raise the rental price

More salt in the wound of housing for rent in Spain.

The market is so upset that in recent months an illegal practice has surfaced that seriously harms tenants, but can also cause serious problems for landlords who abuse this method without reason.

It is the trap of false need.

More and more owners are looking for a way to recover their house before the end of the rental agreement.

There is only one way to do it legally and that is by alleging the need to redeem your home, either for your own use or for a first-degree relative of consanguinity (for example, for a child or a parent) or for your spouse in the event of final judgment of separation, divorce or marriage annulment.

"We received multiple calls from owners interested in this way of recovering the leased homes before their expiration," says José Ramón Zurdo, general director of the Rental Negotiating Agency.

And he adds: "At the current time of rising interest rates and inflation there are real needs."

So far, nothing that is illegal.

Article 9 of the Urban Leasing Law (LAU) contemplates this possibility, provided that the owner has well-founded reasons and can demonstrate the haste to dismiss his tenant.

It could be due to a job transfer, separation or divorce, for a child, for health reasons (the doctor could recommend the beach house…).

The problem is that the need for some landlords is false.

It is nothing more than an excuse to end the tenancy early.

It is impossible to know exactly how many cases are simulated, but Zurdo calculates that it could be up to half of the cases that occur today.

"Obviously, there are many cases of fraud," confirms Tito Petrizzo, lawyer and founder of the Models and Contracts website.

The hidden objective of these owners is usually to recover the homes to put them up for sale, although they also do it to make a new rental contract by raising the rents to adjust them for inflation —the rent update is currently limited to 2%— .

Or, even, to change tenants because the current ones are late in payments or are problematic.

There is another important issue and it is the approval by the Government of an extraordinary extension of six months in the contracts, which is in force until June 30, 2023. "Many landlords, unable to recover their homes in the time they had planned, , resort to this type of mechanism”, says Zurdo.

The Madrid Association of Real Estate Companies receive queries from agencies about the possibility of selling a rented apartment and that, later,

the buyer goes to the cause of necessity to occupy the house.

“The landlord must have a state of necessity, not one that has been subrogated in the contract because the one who buys a home to reside in it can buy a free home and not force the breaking of a lease,” explains Martínez.

In order to rescue the apartment alleging necessity, be it real or simulated, an essential requirement must be given.

The rental contract must include a clause that clearly states the possibility of needing the home before the expiration of five years.

In the agreements signed as of March 2019 (and also in those signed between January 1995 and June 2013) this right can only be exercised if the clause exists.

"In new contracts it is already included by system so as not to lose the possibility," underlines Miguel Gastalver Trujillo, a specialist in Real Estate Law at the Gastalver Abogados firm.

On the other hand, in documents signed between June 2013 and March 2019 it is not essential that the clause appear.

The landlord will have to wait until the contract enters the mandatory extension phase to be able to allege the cause of necessity.

It is important to know that it can only be exercised after the first year of rental has elapsed, not before, and it is only valid for natural persons, not legal entities.

"The owner must communicate his intention in writing to the tenant at least two months before the date he intends to occupy the home," says Fátima Galisteo, head of the Galisteo Abogados law firm.

It is very important that it is clearly indicated who is the person who has the need (the owner, his son, his father or the spouse due to separation or divorce).

Moving in three months

But this is not enough and this is where problems can arise for landlords who cheat, because they must prove the need with objective and duly justified reasons.

In addition, the LAU obliges the owner or his relatives to establish their permanent residence in the recovered house.

They must occupy the home within three months and, if they do not move within that period, the tenant can resort to legal proceedings to demonstrate that their rights have been violated.

Sometimes, even though the owner does not have a special interest in occupying the leased property, "he makes the effort to move to live there for a year to eliminate the risk of a claim from the tenant," says Gastalver.

Judges usually distinguish in their sentences between the need of the landlord and the convenience or comfort of the landlord.

If the tenant wins in court, he has two aces up his sleeve.

He can demand relocation to the house with a new rental for another five years that has the same conditions as the original and that he be compensated for moving expenses.

Or he can “be compensated with an amount that depends on the forced extension period that he could not enjoy due to the landlord's fraud of the law.

For the contracts signed today, one month's rent for each year that was missing until five of the contract's validity had been reached, ”explains Gastalver.

This lawyer notes that many clients come to his office to find out if the cause of necessity could be used to end a contract,

The problem is that 70% of tenants leave the apartment without embarking on a slow and expensive legal process.

"Normally, they don't care about whether the owner occupies the house, they just have to look for a new apartment and, once found, they relax," says Jesús Manuel Martínez (Amadei).

Those who fight find themselves with a problem: “Being able to demonstrate the existence of falsehood or fraud.

For this, the advertisements for sale or rent that the landlords themselves publish after falsely evicting the tenant are useful”, says Petrizzo.

This lawyer encounters daily "cases of tenants who are required to evict out of necessity when in reality the owner seeks to raise prices or sell the home."

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