It is very important that you know what the tacit renewal is and how it is applied if you are going to rent a home, whether you are the future tenant or the landlord.
And it is that when the end date of a lease arrives, several scenarios can occur. The best known are, effectively, that the contractual relationship between the parties ends or, on the contrary, that it be renewed. However, there is a third circumstance that can occur and that not everyone knows: the tacit redirection.
This has to do with the duration agreed in the initial contract and, in addition, also with the way in which the rent is set, regardless of the way in which the payments are made. Next, we are going to explain what the requirements are for it to occur and what are the characteristics of this new relationship between landlord and tenant.
1. What is the tacit renewal ?
Although little known, in practice it is very common for a lease to last for years after the agreed termination date. This is due to the tacit renewal, which is the new relationship that arises between a tenant and his landlord when the signed contract ends .
But here the nuances are very important. The tacit renewal should not be confused with the tacit extension.
The first occurs once the contractual relationship is terminated , when the maximum contractually or legally stipulated date has been reached. Therefore, it is a new contract. In a tacit extension, whether conventional or legal, the original lease is continued, without changing its content.
2. When does the tacit renewal take place?
Once the lease and its extensions end, the relationship between landlord and tenant enters into tacit renewal if more than 15 days have elapsed since the termination date and the tenant remains in the property without the owner requesting the return of the rent. possession of the property.
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For example, if the last legal extension of a housing lease ends on July 1 and the landlord does not notify the tenant of the termination of the contract before the 15 days following that date have elapsed, the tacit renewal occurs. . That is, to avoid this, the landlord must send a notice to the tenant no later than July 15.
In this regard, it is important to know from what date these 15 days begin to count. According to the law, the minimum duration of a lease is 5 years or 7 if it is a legal person . Therefore, if a shorter term is established in the contract, the mandatory extension would have to be waited for up to 5 or 7 years, plus another 3 years of tacit extension. In other words, the tacit renewal would begin, with the agreement of the lessor, after 8 years and 15 days have elapsed.
3. Requirements for the tacit renewal
The following requirements must be met for a contract to be tacitly renewed :
- That there is no clause in the contract regarding this matter.
- That the tenant does not use the 15 days after the end of the contract to vacate the house or for anything else that delays the delivery of keys and possession.
- That the landlord has not declared himself against the tenant remaining in the property, nor has he notified him of the end of the contract.
- Since the tacit renewal is a new contract and not an extension of the previous one, the parties must have the capacity to enter into contracts.
Regulations applicable to the new contract
The tacit renewal is not included in the Urban Leasing Law (LAU), therefore, this new contract is subject to the rules of the Civil Code .
This is important because if something is not expressly agreed by the parties in the initial contract, the clauses of the LAU will not apply, but rather those of the Civil Code, which are usually more favorable for landlords.
4. Characteristics of the contract by tacit renewal
With the tacit renewal , the initial lease is terminated and a new one arises with exactly the same conditions, except for its duration.
In addition, in the event that a third party intervenes in the initial contract as guarantor or provider of any guarantee, with the tacit renewal, their obligations in this regard will end. Unless otherwise agreed in the contract.
The duration of the new contract
The duration of the new contract generated is regulated by law . However, some courts interpret the law in one way and others in another.
The law says that the duration of the new contract will be annual if the rent was set annually in the original contract, monthly if it was established monthly and daily if it was stipulated daily. In the contracts it is very common to indicate the total annual rent and that it will be paid in monthly installments. For example: “the agreed rent for the lease of the property object of this contract is 6,000 euros per year, payable in monthly installments of 500 euros each.”
What is the interpretation of the courts?
The Supreme Court decides that the duration of the new contract will be in accordance with the way in which the rent was set in the initial contract , regardless of whether it is paid monthly or not. That is to say, if the contract states: “the rent agreed for the lease of the property that is the object of this contract is 6,000 euros per year”, whether or not it will be paid by months, the duration of the tacit renewal will be one year.
However, there is one exception. The housing lease contracts entered into before December 31, 1994, the new contract will have a duration of 3 years and once elapsed, there will be a new tacit renewal, if the requirements are met; with the corresponding duration as seen.
On the other hand, some Provincial Courts establish that, although the contract establishes that the rent is annual , if it is indicated that the rent is paid monthly, then the tacit renewal will be monthly. That is, every month a new contract would be created until the landlord notifies the tenant that he does not wish to continue with the lease.
As you can see, these clauses of the lease are very important. So, if you want to prevent the rental of your home from lasting longer than desired, Gilmar ‘s experts can help you draft the lease and send the necessary communications to your tenants.
5. How to avoid the tacit redirection?
If you do not want to renew the contract and the tacit renewal has not yet begun, the landlord must notify the tenant 4 months before the end date of the contract. If it is the tenant who does not want to continue with the lease, he must notify the property 2 months in advance.