After 24 April 2024 (Decree Law 6/2024)
Permanent link URI ELI to the legal text: https://portaljuridic.gencat.cat/eli/es-ct/dl/2024/04/24/6
These are some of the questions and answers on the subject. No political, ideological or economic assessments.
What is the context?
There is a clear and manifest escape from the Law on Urban Leases (“LAU”) by landlords to the Civil Code (19th century in the drafting of leases) which says that the parties can agree whatever they want.
At the beginning, the reasons were to flee from the minimum duration of 5-7 years, the impossibility of increasing the rent annually above inflation, and in some cases to continue charging the tenant the service fees contracted by the landlord. After the Housing Act 2023 and the approval of the indexes in 2024, in Catalonia, the limitation of rental prices was added as a reason for the escape. It seems that today, in Catalonia, between 1/3 and 1/2 of the rental offer is seasonal.
The (lack of) (affordable and decent) housing is the biggest current problem in large parts of Catalonia, if not all of it.
Renting outside the LAU?
Despite urban legends, the LAU is quite clear. A flat that is rented as a habitual residence is governed by the LAU. It does not say anything about 11 months, and other nonsense that is taken for granted. If the need is not for a habitual residence (for example, a candidate who rents a flat for 2 years to prepare for a competition, outside his habitual place of residence), the LAU does not apply.
LD 6/2024 changes that, as we shall see.
Renting rooms?
There is no Supreme Court jurisprudence because this issue has not reached, nor is it likely to reach the Supreme Court. There are some Provincial Courts that have ruled quite consistently. The LAU does not apply to room leases because it is not a dwelling that is rented, but parts of it (room). Therefore, the duration and price are free.
LD 6/2024 changes that, as we shall see.
What is the new regulation for seasonal leasing?
The reaction has been to make seasonal rental very exceptional – residual.
Only rentals for leisure and holiday purposes are outside the LAU, which must be stated in the contract. Taking into account that holiday rentals of less than 30 days are considered tourist rentals according to the Tourism Law of Catalonia and require a tourist housing licence, the Civil Code will only apply to those fortunate enough to have a holiday of more than 30 days.
The LAU expressly includes all the usual justifications for seasonal rentals and co-living structures: professional, work, study, medical care, transition from one dwelling to another. These all fall into LAU.
What is the new regulation for room rental?
If there is a small application space left in the seasonal one, there seems to be none left in the bedroom one.
The LAU applies.
What does it mean that these contracts fall under the LAU?
Limited prices (in the case of rooms, the sum of the rooms may not exceed the rent of the flat according to the index), duration 5 or 7 years, annual increase in inflation.
In short: what landlords don’t want and tenants do.
Is it in force?
It applies to all contracts signed after 26 April 2024, which is when it came into force.
A Decree Law is provisional (but is applicable for the time being) until it is validated by the Parliament. As the Parliament is dissolved due to the elections, it will be decided by the Diputació Permanent (interim legislative body) in the electoral or post-electoral period. It is impossible to know what they will vote. It cannot be ruled out that it will not be validated.
Are there fines for non-compliance?
Yes. Serious or very serious infringements are foreseen: not expressing the real cause or charging more than 30% of the rate.
Can the Generalitat regulate this?
It is doubtful. Previously, in 2022, the Constitutional Court (TC) said that the regulation of caps on rents for permanent housing was a matter of state competence. The challenge before the Constitutional Court will go this way.
If anyone is interested in this legal disquisition, they should read the explanatory memorandum of the DL.
Will it be challenged before the TC?
It is certain to do so. Parliamentary groups, etc. can do so. But only the Spanish Government has the possibility of challenging and suspending the application and leaving it on “stand-by” until the TC rules. Everything indicates that such a challenge will depend on the electoral arithmetic in 2024.
How long would it take for the TC to rule?
Impossible to answer. The challenge on rent caps took a little over 1 year. But the challenge on the regulation of termination of pregnancy has not been decided for 10 years….
Another reminder
If the lease is not for a habitual residence, you have to pay ITP (stamp duty tax). It is paid by the tenant: how many tenants are doing it…?
Has anything else been added to the DL?
Yes, if a large holder (remember: 5 homes in Catalonia) sells a flat in a tense area, the Generalitat (or registered social entities, social developers, etc.) have the right of first refusal: same price and conditions. This is a novelty because it is not required the flat to come from foreclosures, etc. Now it is any dwelling.
This makes it obligatory to report the sale beforehand. The period is 3 months. During this period, the Generalitat can ask to visit the flat and the period is interrupted.
