In the year of the pandemic, many owners decided to withdraw their homes from the vacation market to use them for long-term rental. In fact, the latest data from the INE show a decrease of 27,000 flats for tourist use in Spain only between August 2020 and last February (8%), while the supply of the traditional rental market increased by double digits.
With the arrival of summer, there are many owners who are thinking of returning the initial use of the properties to use them again for the holiday market. However, this new change could be a fraud if not done properly.
That, at least, is what José Ramón Zurdo, lawyer specializing in leasing and general director of the Agencia Negotiadora del Rent (ANA), says, which explains facing the summer season, the rental of flats for tourist use will want to be activated again, and a large part of the thousands of homes that changed their use to traditional rental, will want to change it again to tourist rental.
However, it issues a warning: “if at the time the rental use of flats for tourist use was changed to residential, the temporality of the lease was not properly accredited, that lease will continue as residential and its duration is minimum 5 or 7 years, depending on whether the landlords are natural or legal persons, and it is the tenants who can defend their rights in this case.”
In other words, changing from one use to another could be illegal, even if the rental contract agreed between the parties is temporary.
From the Rental Negotiating Agency they insist that the legal figure that the landlords of tourist homes have been using, to change the use to residential and then change it back to flats for tourist use, is that of to subscribe seasonal leases (temporary occupation of a home in specific periods). In this case, the agreed term is not subject to any mandatory extension for landlords, therefore, upon expiration of the agreed term, the lease would end and the landlords could now recover their homes to rededicate them to tourism.
But this practice can be dangerous, since, according to Zurdo, “landlords have to prove the temporary nature of the contracts and that future tenants have their usual residence in another town, otherwise they could be accredited, We would be facing housing leases , which could reach the duration periods indicated above, and the owner could not recover the property beforehand to change the use to tourist “.
Thus, the key is for the tenant to be able to demonstrate that the home is his habitual residence , since, in that case, and even if the contract was made as temporary, the owner would be in fraud of law.
In this sense, Zurdo adds, “what is signed in these seasonal lease contracts does not compromise the tenants at all if they prove that they rented the houses to establish their habitual residence there. This practice would be considered to be a fraud of law, which occurs when a legal business (seasonal lease) is used in order to achieve certain objectives contrary to those regulated in other rules of the Legal System (rules that regulate housing leases that have a more stringent legal regime than the rules that regulate seasonal leases) ”.
In fact, the lawyer recalls that on several occasions the Supreme Court has ruled that the qualification of a lease as seasonal (use other than housing) does not derive from the agreed term, but from the purpose of the occupation, and this for To be considered as a seasonal lease, it must be unrelated to an occupation as the tenants’ habitual and permanent residence.
“If the owner now wants to recover his home for tourist use, he should have done his homework correctly a year ago, that is, in the seasonal contract, in addition to correctly accrediting the temporality, he would have to include that the The tenant’s habitual residence is not in the house he is currently renting ”, Zurdo concludes.
For more information you can visit the College of Property Managers website of Barcelona-Lleida.