The current Urban Leasing Law proclaims in its ninth article, third section, that “once the first year of the contract has elapsed, and provided that the lessor is a natural person, the compulsory extension of the contract will not proceed , when at the time of its celebration, it would have been stated in it, expressly, the need for the landlord to occupy the leased home before the course of five years to allocate it to permanent housing for himself or his relatives in the first degree of consanguinity or adoption or for your spouse in the event of a final judgment of separation, divorce or marriage annulment.
To exercise this power to recover the home, the landlord must communicate to the tenant that he needs the leased home, specifying the cause or causes among those set forth in the preceding paragraph, at least two months before the date on which the home it is going to be needed and the lessee will be obliged to deliver the leased property within said period if the parties do not reach a different agreement. ”
Recover the leased home because of need
From the text of the law, it is possible to obtain the requirements that it requires so that a landlord can recover the leased home alleging a cause of need.
This power that landlords have only applies to regular home leases. Therefore, it is not applicable to the rest of the leases. It is necessary that the lessor is a natural person , so the need could not be given to legal entity lessors. It is necessary that the initial term for which the contract was signed has elapsed and that it has entered an extension, so a contract that had been signed for three years, until such term had not elapsed, could not request the recovery of housing for this reason. The law speaks of "once the first year has elapsed ..." because most of the housing leases are signed for a year , and can then be extended at will of the tenants for up to 5 years, in the case of landlords, who are the only ones who have the right to request the recovery of the housing out of need. It is necessary that the need of the landlord to occupy the house has been stated in the contract itself , we understand not in itself the cause, because at that time it could be unpredictable, but what should have been foreseen, is that the need to the landlord. The cause of need is an extraordinary power that the law grants to landlords. It annuls the right to extension of the tenants , for this reason this need, as an extraordinary power, can only occur in certain people such as the landlord himself or his relatives in the first degree of consanguinity or adoption (parents and children, not grandparents or grandchildren ) or for your spouse in cases of separation, divorce or nullity. Finally, to exercise this power to recover the home, the landlord must notify the tenant , at least two months before the date the home is going to be needed.
How has all this changed with COVID-19?
All of the above changes with the new regulation established by the Government of Spain as a consequence of COVID-19, because Royal Decree 11/2020, which entered into force on April 2 of this year, regulates an extraordinary 6-month extension for all the usual home lease contracts. Even for the leases of those tenants who were not in a vulnerable situation .
And it does so for all contracts that end in the period between the publication of Royal Decree April 2, until the 2 months following the end of the Alarm State. Said extension, which all the landlords are obliged to accept, does not operate automatically but can only be initiated at the request of the tenants.
We observe how from the Decree that regulates the Alarm State a change in the legal effects that the cause of necessity unfolds . And one of the main consequences is that we see it as a lower ranking norm, such as the aforementioned Royal Decree, contradicts the Hierarchical Normative Order, violating article 9.3 of the Urban Leasing Law.
Violation of the owner's rights
Right now an owner who is in this situation and accredits a need to recover the leased home, such as because he had divorced, could not recover the home until qnnit into 2021. When in normal conditions, once the first year of contract, with a notice of 2 months it would be enough to recover it.
This violation of rights, contained in the Royal Decree leaves the owner abandoned. Because in a situation of need, you do not have the right to recover your home within the terms established by the Urban Leasing Law. The Decree gives greater relevance to the right of tenants to extend it than to the right of the owners to be able to recover the rented houses in case of need.