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Yes, after it was approved by decree law (which is only allowed in case of special urgency, and what has become this government, passing many laws like this) last December 14, and with entry into force on December 18, the new law of Rent, came to try to “solve” the boom in the price and over price of rent, with measures in which, somehow, always benefited those who rented.

Let’s remember that according to article 86 of the EC, within thirty days from its enactment, the Congress must expressly pronounce on the validation or repeal of the Decree-Law. Consequently, after yesterday’s vote on January 22, 2019, Royal Decree-Law 21/2018 published on December 19, should be understood as repealed, since it did not obtain the necessary majority to be validated.

And now the question, in what situation are the numerous contracts signed during its validity, for example, the term of the lease, which the Royal Decree Law had raised from three to five or seven years (depending on whether the lessor was a natural or legal person). In what situation is now a contract signed in early January by a legal person who has had no choice but to agree for seven years when he would have preferred to do so for three? Let’s remember that three years is the minimum legal period in force today, after the repeal of the Royal Decree-Law.

The first thing would be to think about the legal effects of that “derogation” that results from the non-validation. That is to say, we can understand that the law has never existed, since the Governments are not legitimated to promulgate laws, (although they only have one month of validity), a civil question of undoubted interest would be raised. The lessor could argue that, in reality, when agreed for the minimum term, must play the three years, as it was the only real at the time of the contract. But it is true that the lessee, in turn, could argue that if he had known, he would not have signed it. The logical solution, then, would be to defend the annullability of the consent at the request of the lessor, because in the end it has been moved to error (that is, to fix a term superior to the legal one) by a third party (the Government playing with decree-laws when it should not) on an essential element of the contract (its duration).

The lease contract signed during the validity of the royal decree law, that is, since last December 19, will have full validity since it is necessary to respect the will of the parties.

In reality, the will to rent a property does not affect the validation or not of the royal decree, because there is freedom of pacts between the parties to establish the term of duration of the contract they agree, and the owner who wants to rent for 5 or 7 years, as provided for by the royal decree, so will be stated in the contract, after agreement with the tenant, regardless of which legislation is applied, if the reform of 2013 or 2018.

If the contract has a duration of 5 or 7 years, this remains unchanged because it is the will of the parties. But the tacit renewal that is in three years by the current reform, would remain only in one year.

And what would happen if during that time, some General Meeting of Owners, had denied the use of any apartment as a Tourist Rental, as the law prayed and gave them that power? Would the owner have reasons to be able to avoid the agreement? Obviously, yes. But the mess is already mounted.

It is the problem of legislating by Decree Law, that you run the risk of turning something normal and that has legal security into chaos.

About The Author
Israel Huertas Salazar

Inmobiliaria en Torrox. Ofrezco un trato personalizado y una contrastada experiencia como intermediario en la compraventa de inmuebles de todo tipo, oportunidades y grandes inversiones inmobiliarias, en diversas ubicaciones, tanto en Torrox, como Nerja, Frigiliana, Torre del Mar… y gran parte del territorio andaluz. Como broker inmobiliario, colaboro en red con todas las inmobiliarias y empresas promotoras y puedo conseguir la propiedad de su interés.

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