Recover rented housing out of necessity

Requirements to be able to recover the rented home due to the need of the landlord or due to the need of some of his relatives.
NOVEMBER 18, 2021
10 minute read

FRANCISCO SEVILLA CÁCERES

Lawyer
50 COMMENTS

Index of contents

We talked about the possibility of recovering the rented house due to the need of the landlord or his relatives.

This article is aimed at those housing leases entered into between June 6, 2013 and March 5, 2019. 

Rental contracts entered into as of March 6, 2019 will also be regulated by the LAU but with the modifications introduced by Royal Decree Law 7/2019, as we will explain at the end of this article.

The first thing we should know is that, depending on the date of execution of the lease, the recovery due to housing need has a different regime:

Recover rented housing out of necessity in contracts entered into from 06.06.2013 to 03.5.2019

The issue is regulated in article  artículo 9 of the Urban Leasing Law (LAU).

Section 3 of the aforementioned provision includes the possibility that the lessor can recover the property delivered for rent before the lease contract ends.

The aforementioned article artículo 9.3º LAU provides:

» The mandatory extension of the contract will not proceed if, once the first year of its duration has elapsed, the landlord notifies the tenant that he needs the leased property to use it as a permanent home for himself or his relatives in the first degree of consanguinity or by adoption or for your spouse in the event of a final judgment of separation, divorce or marriage annulment.

The aforementioned communication must be made to the tenant at least two months before the date on which the dwelling is going to be needed and the tenant will be obliged to deliver the leased property within said period if the parties do not reach a different agreement.» 

Most important issues to recover rented housing out of necessity:

– The rented home can be recovered due to the need of the landlord, as long as it is for himself, for any relative in the first degree of consanguinity or by adoption, or for his spouse in the event of a final judgment of separation, divorce or marriage annulment.

– You can request the recovery of the home out of necessity without it being necessary for this cause to have been stated in the stipulations of the lease.

– The recovery of the home may not be requested until the first year of the contract has elapsed. If the lease is after June 6, 2013, which is when the new regulations came into force, you have to wait at least a year to be able to recover it.

– The law says that “The mandatory extension of the contract will not proceed if, once the first year of its duration has elapsed, the landlord notifies the tenant that he needs the leased property to use it for permanent housing.” The aforementioned legal text, read literally, establishes that "the mandatory extension will not proceed", which means that if the contract is not in mandatory extension, but is within the contractual term agreed in the contract, the lessor You will not be able to recover the rented house out of necessity until said period has elapsed.

Sentences where an attempt is made to recover the house rented out of necessity

Judgment of the Provincial Court of Madrid (Section 21) of 06.25.2019:

«Well, the power of article 9.3 of the Urban Leasing Law to put an end to housing leasing is linked to the fact that the contract is in a situation of mandatory extension, and that contract agreed for a term of less than three years will be, or who is in the situation of article 10, for which it is necessary that the expiration date of the contract, or any of its extensions, has elapsed after at least three years of its duration.

But the lease of the defendants (tenants) is not in a situation of mandatory extension, but rather in a contractual term, which was established for a period of twenty years, so it cannot be terminated due to the need of the lessor in accordance with article 9.3 of the Law of Urban Leases.”

This lack of clarity of the law advises landlords to make contracts for a duration of ONE YEAR, thus having the possibility of recovering the home due to the need of him or his relatives, since after the contractual term of the year, the lease will have entered into a legal prórroga legal  in favor of the tenant for two more years until completing three, which allows the landlord to avail himself of this possibility of recovering the home.

– The aforementioned communication must be made by the landlord to the tenant at least 2 months before the date on which the home is going to be needed and the tenant will be obliged to deliver the leased property within said period if the parties do not reach an agreement different.

– Mere communication is not enough to recover the rented home out of necessity, but the cause must be certain and accredited, for example: a copy of the divorce decree where the rented home is attributed to one of the spouses. Prove that one of the children does not have a home to live in, etc.

– The term that the landlord or one of his relatives has to occupy the recovered home is THREE MONTHS. If it is not occupied within said period, the tenant may again request within THIRTY DAYS to return to the home and return to the rental for a duration of three years.

– In the event that the tenant returns to the dwelling because it had not been occupied in those three months by the landlord or any of his relatives, he may request compensation for the expenses that the eviction would have entailed (moving, another rent, etc.).

Example of a case on the recovery of housing rented by necessity

Housing lease contract from September 2018, with an agreed duration of one year, which will be extended annually (at the tenant's will) until it reaches the minimum legal duration of three years, that is, until September 2021, in accordance with article 9.1 of the LAU.

If the landlord needs the house for himself or a first-degree relative, as the agreed duration of the contract ended in September 2019, the contract is being extended for a second year, so the landlord could notify the tenant of the cause of need to repossess the home.

After everything we have said so far, the cause of necessity provided for in article 9 section 3 of the Urban Leasing artículo 9 apartado 3 de la Ley de Arrendamientos Urbanos  cannot be invoked in the first year of the contract, but it can be invoked after it is fulfilled, for what could already be done the requirement two months in advance provided that the end of this period is after the first annuity.

Recover rented housing out of necessity in contracts entered into from 03.5.2019 onwards

Article 9.3 of the LAU has been modified by Royal Decree Law 7/2019.

This reform will apply to contracts entered into from March 6, 2019 onwards.

The most interesting thing about this reform is that a clause must be expressly included in the contract that makes it possible to recover the home out of necessity. If said clause does not expressly appear, said recovery cannot be invoked by the lessor.

Article 9.3 of the LAU  artículo 9.3 de la LAU has been worded as follows:

"3. Once the first year of the contract has elapsed and provided that the lessor is a natural person, the mandatory extension of the contract will not proceed when, at the time of its execution, the need for the lessor to occupy the leased dwelling before five years have elapsed in order to use it as a permanent dwelling for himself or his relatives in the first degree of consanguinity or by adoption or for his spouse in the event of a final judgment of separation, divorce or marriage annulment.

To exercise this power to recover the dwelling, the lessor must notify the tenant that he needs the rented dwelling, specifying the cause or causes among those provided for in the previous paragraph, at least two months before the date on which the housing is going to be needed and the tenant will be obliged to deliver the leased property within said period if the parties do not reach a different agreement.

If after three months from the termination of the contract or, as the case may be, from the effective eviction from the dwelling, the landlord or his relatives in the first degree of consanguinity or by adoption or his spouse had not proceeded in the event of a final judgment of separation, divorce or marriage annulment to occupy this by itself, depending on the case, the tenant may choose, within a period of thirty days, between being reinstated in the use and enjoyment of the leased property for a new period of up to five years, respecting , in the rest, the contractual conditions existing at the time of termination, with compensation for the expenses that the eviction of the dwelling would have entailed up to the time of reoccupation, or be compensated for an amount equivalent to one month for each year that remain to be fulfilled until completing five years, unless the occupation had not taken place due to force majeure, understood as such, the impediment caused by those suc those expressly mentioned in regulations of the rank of Law to which the character of force majeure is attributed, or others that could not have been foreseen, or that, foreseen, were unavoidable.»

Can the rental contract be terminated due to the need of the landlord?

To find out if the housing lease can be terminated before the end of the agreed duration or that legally provided for in article 9 of the LAU, it is necessary to read if this possibility was agreed in any of its clauses in the contract.

If nothing was agreed, the contract cannot be terminated for reasons of necessity.

If this possibility was agreed in the contract, the contract can only be terminated if the person who needs the dwelling is the landlord himself or one of his first-degree relatives.

Finally, the cause of need for housing has had to arise after the contract was concluded, since if it is earlier it is possible that the tenant and the Court will reject it in the event of a lawsuit.

Burofax model termination of rental contract due to the need of the

The writing of this burofax that is offered below, is only done for an exclusively informative purpose, remembering that it is a general model that must be adapted to each assumption and situation. To see the template model you can click here - clic aquí

If you want to read more about the resolution of these contracts by necessity, CLICK HERE.- PINCHA AQUÍ.