Tax exemption for reinvestment if we have been renting part of our home?

Are we entitled to the exemption for reinvestment in habitual residence if we have been renting part of our home? A real estate investment is a long-term project. In the long term, personal situations can change radically. What was bought to rent can end up being the main residence, and vice versa. That can have fiscal consequences, and we are going to talk about that.

This issue has been analyzed by the Binding Consultation V1171-21, of April 29th, 2021 of the Spanish Income Tax General Sub-directorate. Before answering the question, let’s briefly explain what the exemption for reinvestment in habitual residence consists of.

The art. 38.1 LIRPF (Spanish Income Tax Law) allows not taxing the profit obtained after the sale of our home if we reinvest these profits in the acquisition of a new habitual home. Consequently, we will only pay tax for that part of the profit that exceeds the amount reinvested.

In order to benefit from this exemption, it is necessary to reinvest the profit, generally, within the two years prior or subsequent to the transfer of the previous habitual residence. When the reinvestment is not carried out in the same year as the sale, you must state the intention to reinvest in the tax return of the year in which the profit is obtained.

In order to invoke the exemption, the qualification as habitual of the home must concur in both dwellings: in which it is transmitted and in which it is acquired. The heart of the matter.

What is considered a habitual residence?

We can find the definition at the art. 41 bis RIRPF According to this article, your habitual residence is the building that constitutes your residence for a continuous period of at least three years. This continuous residence implies an effective and permanent use by the taxpayer himself, without taking into account temporary absences.
However, it will be presumed that the home has had the character of habitual when, even when the three years have not elapsed, the taxpayer dies or there is some extraordinary circumstance that forces it to change their address (marriage, separation, transfer labor, etc.).

Having this said and for the sole purpose of applying the exemptions of the art. 38 LIRPF (also those of the art. 33.4.b) LIRPF), the taxpayer must prove, either that the transferred dwelling constitutes their habitual residence at the time of the transfer (they have lived there the three years prior to the transfer), or that it has been considered a main residence until any day of the two years prior to the date of transmission (art. 41 bis.3 RIRPF).

Now that we know what the exemption for reinvestment in habitual residence is and we have defined the concept of “habitual residence”, we are going to analyse the object of the binding consultation.

The consultant owns a dwelling that has been operated as a touristic apartment from 2016 to September 2020. Since September 2020, he has begun to effectively reside in the apartment. He is considering to temporarily lease one of the rooms.

Two questions arise:

Is the consultant’s property considered a habitual residence?

En caso afirmativo, If so, could he benefit from the exemption of the art. 38.1 LIRPF if he has been renting a room?

In relation to the first question, in accordance with the concept of habitual residence of the art. 41 bis RIRPF, the Income Tax General Sub-directorate has understood that, in the case of selling the property, the consultant could not benefit from the exemption until three years have elapsed from the date of termination of the lease.

Regarding the second question, the Income Tax General Sub-directorate has understood that the consultant could only invoke the exemption on the profit that proportionally corresponds to the part of the house used privately (including common areas). That is, he could not apply the exemption on the part of the profit that proportionally corresponds to the rented room.But indeed for the rest, and this is the interesting point.

The first answer has not surprised us. he second really does, because it introduces an unexpected element of flexibility. It is definitely something to keep in mind.

Cambios certificación energética venta o alquiler 2021

A partir de ayer día 3 de junio de 2021, la certificación energética de edificios ha cambiado de manera radical.

La norma existente ha sido derogada, y se aplica el RD 390/2021 de 1 de junio.
Estas son las principales cosas a tener en cuenta por su relevancia práctica, al comprar, vender o alquilar una propiedad inmobiliaria a partir de ayer. En otras palabras: qué es lo que cambia.

1. Se debe disponer de certificado energético para casi todos los inmuebles

Ya no es cosa que afecte sólo a las viviendas.

Es más rápido decir cuándo no es necesaria (los más importantes supuestos):

a. edificios no residenciales < 500 m2 b. edificios protegidos c. construcciones provisionales d. edificios que se compran para demoler o para reforma integral En todos los demás casos, hay que tenerla. Una disposición transitoria concede un plazo de 12 meses (hasta junio 2021) para que la obtengan los inmuebles que vienen obligados de nuevo a tenerla. Esto es un gran cambio. 2. Se crea la “certificación técnica de proyecto” y la de “obra terminada”.

A nivel práctico, cuando se venda obra en construcción o sobre plano, o se alquile construcción futura, ya se debe tener un certificado de eficiencia energética “de proyecto” y adjuntarlo al documento de compraventa privada o de alquiler.

3. Será obligatoria la inclusión de la etiqueta en los anuncios de venta o alquiler.

La obligación alcanza también a las plataformas web.

En otras palabras: ya no es legal indicar “certificación energética en trámite”, que hemos visto miles de veces en los anuncios.

No cumplir con todo lo anterior será sancionable por dos posibles caminos: infracción de lo dispuesto en la Ley del Suelo y Rehabilitación Urbana y, además si se dan los casos, infracción del derecho de los consumidores.

Works to pay the rent: are you doing it right?

Quite often the tenant agrees with the landlord that the first months of rent are not paid, in exchange for carrying out works on the rented property. It can happen with homes, but it happens much more often with commercial premises or offices. A lessor or assets (in this case real estate) is a taxpayer for VAT purposes (the VAT Law says so). And the commercial leases are subject and not exempt, at the rate of 21% (also according to the VAT Law). So we are going to analyze how this “swap” (rent in exchange for works) affects personal income tax and VAT, based on a very recent binding tax ruling (Consultation V0604-21), of March 16, 2021.

What happens at personal income tax level?

This relates to the situation where the landlord is a moral person. This consideration (rent for works) is considered income in kind for the landlord, who must consider it as income from real estate when filing his returns.

Regarding their temporary imputation (that is, in which fiscal year they must be declared), we must refer to article 14.1.a) LIRPF: “The income from work and capital will be attributed to the tax period in which they are due by the recipient”. Consequently, in this case the returns on real estate capital must be allocated at the end of the contract, that is, in the tax period in which they are delivered to the owner.

In the case raised, the object of the inquiry was the leasing of a commercial premises, however, there are no reasons to understand that the solution would not also apply in cases of housing or industrial leasing.

What about VAT?

For VAT purposes, the lease of commercial premises is an activity subject to and not exempt from tax and for which the lessor is considered an entrepreneur or professional.

In this case, the tax office understands that the months in which the lessee is obliged to pay the costs of the works and in which the lessor does not collect monetary rent are a “grace period”.

Likewise, it also understands that we are dealing with a “swap” contract in which, by definition, the consideration is paid in kind. From an economic and commercial point of view, swap contracts are identical to transactions in which the consideration is monetary.

Consequently, the lessor must pass on to the tenant the VAT corresponding to the grace period even if the tenant does not satisfy the agreed rent. What should be the tax base? We must go to article 79 of the VAT Act. For the case in question, the tax base would be constituted by the value that the lessor attributes to the services that he intends to obtain, and the lessee has agreed to perform. For this reason, the taxable base of VAT corresponds to the amount of the investment in renovation works that they have agreed to carry out on the premises. And be careful, this is an important point, since it can be higher or lower than the amount of the rent that is “swapped”.

Regarding when the VAT is due to pay, art. 75 LIVA establishes that in the provision of services, the tax will accrue “when the taxable operations are rendered, executed or carried out” and, in turn, the income will accrue at the time the part of the price included in each perception is payable.

In this case, the payment of this part of the lease will occur at the end of the contract, when the works made are handed over to the landlord, together with the keys.

Article 75.7 of VAT Acta establishes that, when the payment of the tax has not been agreed, or it has been established with a periodicity larger than one calendar year, the accrual of the tax occurs on December 31 of each year for the corresponding proportional part: have you ever seen anyone doing this calculation, this way, in such cases?

Only one thing is certain: almost no one is doing it well …

Dark kitchens banned in Barcelona until March 2022

Dark kitchens banned for 1 year in Barcelona

Las 25/03/21 Barcelona City Council passed a one-year moratorium on the licensing of constructions, for the increasingly popular, Dark Kitchens or macro-kitchens.

This has been a drastic measure to curb the great increase that this type of establishment has experienced in recent years, together with the pressure of the Restoration Guild, and the protests of some neighbourhood activists. During the pandemic, its boom has been even greater, driven by the great demands that platforms and restaurants with delivery and take-away services have had.

What types of establishments are affected by this moratorium?

All those businesses that wanted to expand or settle in the city, whose main activity was that of bakery and/or industrial kitchen for the elaboration of dishes with no retail sale to the public.

Therefore, catering servicing essential entities such as schools or hospitals are excluded from the moratorium.

What will happen to dark kitchens already operating?

This may continue to operate normally in accordance with current activity regulations (although not very specific).

However, they will likely need to make greater efforts to reduce the impact of their activity on the area surrounding, as the competent administration will carry out more regular inspections of its facilities, pushed by the neighbourhood activists.

Will this new regulation affect the entire city of Barcelona?

Practically yes, it will be applied to the whole area of the city except the Collserola and Montjuïc Park and the two main industrial zones of the city: La Verneda and Zona Franca.

Where is emerging the anti-dark-kitchens movement?

The outbreak of the reaction can be placed in two points of the city: the district of les Corts and Sant Martí. In both locations, the neighbourhood activists have filed numerous formal complaints before the district, and organized protests against the Dark Kitchens, with notable visibility in conventional and digital media.

The target of the protests were two future macro-kitchens of Cooklane (Platform of the Founders of Uber) in there. The main reasons for their protests are: impact on the area (noises, smells, mobility affectations…), and the economic damage to the food and catering businesses of the area.

However, it should be said that the works of the Dark Kitchen de les Corts have already been stopped by the local government and that of Sant Martí, has been in a stand-by mode for a few weeks, neighbours report.

What solution are activists proposing?

The relocation of these macro-kitchens to industrial areas where their activity does not have a detriment to the quality of life of their residentials areas.

They argue that the high volume of influx of riders, the constant loading and unloading of goods and the fumes/smells generated by this activity makes the location of these in urban/residential city centres unviable.

What is the administration’s target with this moratorium?

The main objective is to analyse whether the activity of these businesses is a “retail gastronomy” (as the entrepreneurs affirm) or “industrial food producing” (as the activist claim).

They also seek the creation of a regulatory corpus, not existing today.

The moratorium is using the longest possible period allowed by the law, a usual policy of Barcelona’s City Hall: always choosing the most stringent approach…

Is it legal to buy a property with bearer cheques?

When buying or selling a property, the normal scenario (or the most recommended) is to do it by means of a public deed before a notary. Unlike the private contract, the sale by notarized deed allows the access of the transaction to the Property Registry, and almost totally protect us against third parties.

Among other various functions of the notary, there is to verify that the transaction obeys the Law 10/2010, of Abril 28, prevention of money laundering and terrorism financing. Therefore, the deed must contain the sale payment method and, if any, the proof of all payments.

The most common payment methods in property transactions are the nominative cheque and the bank transfer. And, what happen with the cash payment or the bearer cheques?

Since the end of 2012, when the Law 7/2012 of October 29 was passed, it is prohibited to pay in cash more than 2,500 euros (or its equivalent in foreign currency) in those transactions in which one of the parties is an entrepreneur or a freelance professional. This limit amounts to 15,000 euros when the payer is a natural person acting as such, and who does not have its tax address in Spain.

The breach of this limit constitutes a grave administrative infraction and the penalty shall be 25 % of the amount paid in cash.

What do we mean by cash?

According to the article 34.2 of the Law 10/2012, the cash payment methods are:
– Paper money and coins, domestic or foreign.
– Bearer cheques denominated in any currency.

Any other instrument, including the electronic ones, designed to be used as a bearer payment means.

What is the difference between nominative cheques and bearer cheques?

The main difference between this payment methods is that, while the nominative cheque contains the person who can cash it, the bearer cheque does not contain the person to whom it is addressed to. Consequently, anyone who holds a bearer cheque can cash it. Thus, like paper money and coins, bearer cheques are easily transferable between people.

On October 13th, 2020, the Spanish Government published a new bill against tax fraud, which includes, among other measures, a tightening of the limit on cash payments between entrepreneurs, lowering the limit from 2,500 to 1,000 euros, while maintaining the limit of 2,500 euros for payments made by individuals.

Will this be the end of cash? We do not have the answer to this question, but we cannot deny this method of payment is being relegated.

Is the limit of 2,500 euros for payments in bearer cheques legal?

The recent Sentence 76/2021, of February 25th, of the Administrative Court No. 3 of Valencia has admit an administrative appeal against a sanction for a violation of the 2,500 euros limit for bearer cheque payment.

In this case, there was a series of real estate transactions for a total amount of 3.3 million euros paid by bank cheques, one of them being a bearer cheque of 200,000 euros which was sanctioned by the Regional Inspection of the tax office in Valencia.
Based on the Opinion of the European Central Bank of 1 February 2019 on limitations to cash payments, the appellant alleged that the sanctioning regime is excessive and the fines disproportionate, and it reiterates that the limitations on cash payments should not go beyond what is necessary to achieve its goals.

By this groundbreaking sentence, the judge agrees with the claimant mainly on the basis of the EU Court of Justice judgment of 26 January 2021, cases C-422/19 and C-423/19, in which the EU Court conduct a survey of the concepts of ‘legal tender’ and ‘monetary policy’ of banknotes and coins.

Regarding the first, it points out that the concept of ‘legal tender’ of a means of payment in a currency unit signifies that it cannot generally be refused in settlement of a debt denominated in the same currency unit, at its full face value, with the effect of discharging the debt (principle of acceptance of cash payments and discharging from payment obligations).

Regarding the second, it establishes that the main objective of the monetary policy is the maintenance of the price stability and, although it is an exclusive competence of the Union legislator, this does not prevent the Member States, within the framework of their own competences, to adopt certain measures to regulate the extinction of the pecuniary obligations.

In this sense, the EU Court indicates that the States may regulate the cash payments as long as (1) the principle of cash acceptance is not affected; (2) there is a reason of public interest such as the prosecution of tax fraud; and (3) the measures must be proportional, that is, the measures concerned must be appropriate for attaining the legitimate objectives pursued and do not go beyond what is necessary in order to achieve those objectives.
In the light of the foregoing, the Sentence of the Valencian Administrative Court concludes that the limitation of the cash payment of 2,500 euros when one of the parties is an entrepreneur or professional extends to almost all the operations that occur nowadays, being exceptional the transaction in which both parties act as individuals.

In addition, it states that this measure is not necessary to guarantee the fight against tax fraud in payments by bearer cheques, since there are other more effective means to achieve this objective. In particular, the Spanish regulation on the prevention of money laundering and terrorist financing already obliges banking entities to identify all the people who intervene in operations before them exceeding 1,000 euros and to keep the documentation for ten years.
Therefore, the provisions of the TFEU, and its interpretation by the CJEU, displace the internal rule, which could not be applied in the factual situation.

In short, limiting the amount of a bearer cheque is an unnecessary and disproportionate measure for the purposes of controlling tax fraud and it is contrary to the general principle of acceptance of the euro as currency in legal tender.
For the moment this is the only sentence and it is from an administrative court (not from the Supreme Court), but it applies the EU law and it is backed up by solid CJEU case law, so it should be taken into account in the elaboration of the new bill against tax fraud.

Does the leased property need to be released freshly painted?

We have come across a funny verdict about lease contracts, which we’ll mention bellow. This serves as a motive to tackle an issue that happens often, that is controversial, and that even in some cases even generates litigation.

Should we return fresh painted the shop or home once the lease is over?

Although it is true that when we rent premises or house we can paint it as we wish (painting is not considered a work), what we ask ourselves today is whether, at the end of the contract, the tenant must return the premises or house freshly painted. All this, of course, assuming that nothing has been established in this regard in the lease contract, in which case we should be as provided there.

As a general rule, the tenant should not paint the walls at the end of the contract.

This is, however, not exempt of controversy and not even the courts have a common approach. According to the majority jurisprudence and common sense (at least ours), it will not be necessary for the tenant to return the newly painted house or premises if he has painted it the same color or very similar to the one that already existed. We obtain the same answer if at the end of the lease, the state of the painting is optimal and similar to the one the tenant found upon entering. Unless proven otherwise, it is presumed that the tenant received the property in good condition (art. 1262 of the Civil Code).

Regarding the latter, it must be borne in mind that, if the premises or house has been leased for a long time, painting will be considered a maintenance expense and we can hardly believe that the painting has remained intact and unrelated to the passage of time , so the tenant should return it painted under article 1561 of the Civil Code.

Attention, the tenant must return the house or premises painted if the color he chose does not meet the criteria of “normality”

The Judgment of the Provincial Court of Cádiz 157/2020, of November 5, ruled on an situation where the tenant was an Association that painted the walls and facade of the premises (including the sofa) the green color of the Brazilian flag.

Having agreed in the contract that the lessee received the premises and the equipment in good use, which should be extended to the painting of the premises, the Court has considered that said carioca green color represents an important change in the appearance of the premises and that In addition, it exceeds the criterion of normality.

What do we understand by the criterion of “normality”?

The court understands that a change in the appearance of a leased premises meets the criterion of “normality” when that change involves an adaptation of the premises to the tastes of the tenant and that, after the termination of the contract, it will allow the use of the premises by the lessor in such conditions. In this sense, the court considers that it is not frequent or usual to paint the walls and facades of said green color, so the tenant must assume the cost of replacing the painting of the premises to its original state. But allowed the tenant to deduct from said cost the depreciation of the painting (set by the court at 30%), that is, assuming that the premises were not delivered freshly painted the day the lease started.

Game over for Beach Parties at hotels in Ibiza?

Beach parties, with Ibiza as a pioneer (Ushuaïa, Nassau, Nikki Beach, etc.), hit the spot years ago as an attractive and very profitable business model. It has been a turning point in the leisure business in the Balearic Islands, and it has been exported to other places with similar success. In many cases (almost all) these parties are held in hotels: terraces, swimming pools, beaches, etc., always within the hotel facilities.

However, recently, a Cour ruling (no. 100/2020 of October 28, 2020) of the Administrative Litigation Chamber of the Superior Court of Justice of the Balearic Islands (TSJIB) has questioned the foundations of the model, and turned on the alarm lights. The sentence has gone unnoticed because of the pandemic. But if this line is confirmed, its effects could be a tectonic plaque movement for the industry.

In this case, the Palma City Council ordered the closure of the musical activity that took place on the terrace of the seventh floor of the Hotel Saratoga in Palma de Mallorca for not having a license to do so.

The hotel has a license for hotel lodging activity with complementary musical activity since 1965. The Balearic Islands Tourism Law dates from 2012. Its art. 33-5, and for tourist accommodation companies (that is, hotels, among others), it says “the activity consisting of the operation of a tourist accommodation establishment will be considered a single activity, and it may be offered in the exercise of said activity complementary services to users of tourist services, without requiring the obtaining of an activity license for each of the complementary services provided”. This is what hotels use to organize beach parties.

Based on this article, the TSJIB concludes that the aforementioned precepts, which allow hotels to provide complementary services without the need to obtain an activity license for each of such compatible services, is in relation to those provided to the “users of tourist services”. That is, to the users of the tourist accommodation service that the establishment provides: to the hotel’s clients only! It goes without saying that the vast majority of those who go to a party in Ushuaïa (for example) do not sleep there….

In conclusion, the TSJIB seems to say: yes to beach parties or hotel concerts, but only for hotel guests. The reason is clear: establishments must carry out their activity in accordance with their license.

Although it is true that a single sentence of a TSJ does not settle a court precedent, it is very likely that the matter will not take long to reach the Supreme Court, and if it followed the same line as the TSJB, we could be facing a severe blow to the leisure sector throughout the Islands, which must reinvent itself and seek new forms of business to maintain party tourism. This is undoubtedly, together with the Covid-19 hit, a sign that the sector should not ignore.

Suspension (partial 50%) of the rental payment of a hotel due to Covid

For the first time (February 10, 2021) a Provincial Court (2nd Instance) has ruled on the famous “rebus sic stantibus clause” in business rentals. In this case in hotels, and specifically in the rental of a hotel in a tremendously seasonal tourist market such as the Balearic Islands. The resolution confirms the interim measures to suspend payment of rent. It does not get to the bottom of the matter. You can see the resolution in this link.

The operator of a hotel in Son Caliu (Mallorca) requested the application of an interim measure consisting of the postponement, from June 2020 of payment of 50% of fix rent during the legal process. The lease contract was signed between the hotel operator and Atom Hoteles Iberia, SL (a REIT) as the owner.

The first instance court, in application of the rebus sic stantibus clause, agreed to such a measure, as well as the maintenance of the postponement of the income generated from March 2021 if the legal restrictions on premises occupancy and border access for tourists remain.

Atom Hoteles Iberia, S.L., the owner, filed an appeal opposing the adoption of said measures based on the following two reasons:

1) Lack of grounds, given the fact that the contract itself already includes a risk mitigation mechanism (a fixed income and a variable).
2) Lack of proportionality

The most relevant aspects highlighted by the verdict 66/2021 of the Valencia Provincial Court of February 10th 2021 to deny the appeal filed by Atom Hoteles Iberia and maintain the precautionary measure are the following: the establishment of a minimum contractual income (fixed part of the rent) does not prevent the application of the rebus sic stantibus clause. This conclusion is particularly important, because many hotel operating formulas contain such rent structure.

The very nature of the rebus sic stantibus clause, as stated by the Supreme Court, requires (1) the existence of an extraordinary alteration of the initial circumstances (2) disproportionate split of burdens and that ( 3) such alteration has a certain permanence or duration. Therefore, the rebus clause constitutes a subsidiary remedy that is applied in the absence of a forecast, not being able to understand that the establishment of a minimum income in the contract (in the case in question had established a fixed income and a variable income based on billing) constitutes per se a contractual allocation of risk. Likewise, the AP states that the unprecedent situation justifies the “rebus” clause.

A red alert to be considered by all business owners renting to industries hit by Covid-19-

“Flat for rent (maximum duration 11 months)”

The post-pandemic landscape is getting clear, and the picture is not promising. Today we will write about a recent phenomenon (las 2-3 months) in Barcelona and other cities. It existed before in coastal areas – we have seen it a lot in Ibiza – where the owners want to rent only from autumn to spring, to have the house available for tourists in the summer season. But now this is notorious in Barcelona.

We are going to talk about the civil law sphere of the subject, which is very interesting. Another day we will talk about the administrative sphere (tourist housing license), which is equally relevant.

The profile is always the same on real estate websites. Impeccable housing, professional photos and with a clear hotel “look & feel” (impeccably open beds with towel at the foot of the bed), perfect locations, prices within the reach of few pockets…. and always the same notice after the whole message: maximum 11-month duration, 2-month deposit, 1 month agency (when I see it I really wonder if someone has thought twice about asking for the same fee for a rental of 11 months than for one of 7 years …). You don’t have to be a genius to see what’s behind that. They are homeowners with a tourist license, who, given the fact that there are no tourists or congresspersons, want to earn an income while the storm clears. Perfectly legitimate. But in legal terms, that’s blowing and sipping at the same time. And as anyone knows, it is impossible.

The Law of Urban Leases (“Ley de Arrendamientos Urbanos” – “LAU”) does not speak anywhere of 11 (or 12) months as a limit of anything. It only talks about rent for “permanent dwelling”, or for use “other than permanent dwelling”. The LAU is applied to the former, which has precepts that are mandatory and cannot be waived (because they protect the tenant), including the minimum duration. In seconds, almost everything can be freely agreed upon.

People have constructed the idea, a pure myth that, if the contract is less than one year old, it is no longer a permanent dwelling. That idea – fetish is behind all those adverts. And I have bad news: this is not at all the case. It may well be the case, if the tenant is on a temporary job assignment, an academic year, has another home owned, etc. But in most other cases, the landlord will find it very difficult to escape the minimum duration if the tenant does not want to leave, and says he want to stay there. Especially if, as it happens, the rental contract has been drawn up by the landlord in the form of a “quasi-adhesion”, and contains all possible penalties for the tenant to guarantee that he leaves in the 11th month. On such cases, not only the LAU will apply, but also the regulations for the protection of consumers and users, which are even more tenant / consumer protective.

The minimum duration of the contract (today 5 or 7 years) is part of the motherboard of the legal hardware of the permanent dwelling rental. It’s hard to uninstall that without the OS crashing. Faced with conditions imposed by the owner, the individual tenant-consumer has, with an expert legal advice, many possibilities to continue living in that apartment if he wants to exercise his right to the minimum duration. Tourist apartments owners should be aware of this.

Aplicación de la cláusula «rebus sic stantibus» a martillazos en Cataluña.

El Decreto Ley 34/2020, de 20 de octubre, de la Generalidad de Cataluña de medidas urgentes de apoyo a la actividad económica desarrollada en locales de negocio arrendados se ha adoptado como regulación ad hoc en relación a la onerosidad excesiva y sobrevenida de las prestaciones contractuales de las actividades desarrolladas en bienes inmuebles arrendados para uso comercial que se han visto gravemente afectados por esta crisis sanitaria (especialmente los de hostelería, restauración, deportes y los servicios de estética, grandes superficies, cultura y teatro, y otros).

En su exposición de motivos, el legislador justifica esta decisión «en un principio de solidaridad que se traduce en el reparto igualitario y equitativo de las consecuencias negativas, socializando así el riesgo y evitando hacerlo gravitar sobre una sola de las partes contratantes». No es más pues, que la aplicación de la ahora ya famosa cláusula rebus sic stantibus para restablecer el equilibrio contractual mermado debido a la pandemia, poniendo remedio a la onerosidad excesiva de algunas prestaciones sin tener que recurrir a la resolución de los contratos.

Los arrendatarios de locales comerciales con contratos que, como consecuencia de la pandemia del Covid-19, se hayan visto legalmente obligados a suspender o restringir su actividad industrial o comercial, podrán requerir al arrendador de manera fehaciente (siempre es recomendable utilizar burofax o método equivalente) una modificación razonable y equitativa de las condiciones del contrato de acuerdo con la buena fe y la honradez. El contrato en cuestión debe estar suscrito a partir del 1 de enero de 1995. El decreto no define los conceptos de «razonable» y «equitativo», sin embargo, el fin último debe ser restablecer el equilibrio de las prestaciones.

Una vez hecho el requerimiento, las partes disponen del plazo de un mes para negociar las modificaciones solicitadas. A partir del momento en que el arrendador recibe el requerimiento, no podrá emitir ninguna factura por la renta hasta que no se llegue a un acuerdo, o hasta que no pase el plazo de un mes para negociar. Si, pasado este plazo, las partes no han llegado a un acuerdo, el Decreto ley impone diferentes modificaciones contractuales dependiendo de la restricción sufrida por el arrendatario:

– Si el arrendatario ha tenido que suspender su actividad, la renta (y otras cantidades debidas) se reducirá un 50% mientras dure la suspensión.
– Si, hasta el 22 de octubre del 2021, la suspensión se prolonga más de tres meses (no queda claro si son seguidos o basta con que la suma de tiempo sea de 3 meses), el arrendatario podrá desistir el contrato sin penalización a partir del momento en que se produzca esta circunstancia, mientras se mantenga y hasta tres meses después del cese completo de las medidas. El desistimiento se deberá comunicar al arrendador de manera fehaciente con un mes de antelación.
– Si el arrendatario ha sufrido restricciones parciales de aprovechamiento material (aforo, horarios, etc.), mientras duren las medidas de restricción, la renta se deberá reducir proporcionalmente en la mitad de la pérdida del aprovechamiento. Por ejemplo, si un centro de estética ha tenido que reducir el aforo en un 50%, la renta deberá reducirse un 25%.

Las anteriores reducciones serán efectivas desde el momento que se hizo el primer requerimiento de modificación de las condiciones contractuales.

La norma prevé expresamente, que la prestación de servicios de entrega a domicilio o de recogida de productos en el establecimiento no afecta la aplicación de las reducciones anteriores. Por lo tanto, un restaurante que ofrece take-away podrá igualmente solicitar la modificación de las condiciones contractuales y, a falta de acuerdo, obtener la reducción del 50% del alquiler del local.

Por último, el arrendatario podría exigir que las garantías entregadas en el cumplimiento de sus obligaciones, a excepción de la fianza obligatoria y otras cantidades consignadas al INCASOL, sirvan para pagar las referidas rentas. El arrendatario dispone de un año desde el levantamiento de las restricciones para reintegrar estas garantías (o hasta la finalización del contrato quedara menos de un año).

Con esta nueva regulación, el Gobierno ha querido imponer la cláusula rebus sic stantibus a golpe de martillo para garantizar la subsistencia de los autónomos y las pequeñas y medianas empresas. Sin embargo, en esta ocasión el legislador no ha hecho ninguna distinción entre pequeño y gran tenedor, por lo que la adopción de estas medidas podría implicar que pequeños tenedores, los ingresos dependen de las rentas comerciales, vieran drásticamente reducidos sus ingresos.

Desde EXNOVO Law siempre hemos creído en la importancia del principio de libertad contractual, por lo que, sin perder la perspectiva de la situación excepcional en la que nos encontramos, recomendamos intentar llegar por todos los medios a un acuerdo que satisfaga los intereses de todas las partes, y evitar a toda costa utilizar los tribunales. Los propietarios deben ser conscientes de que, en estos momentos y para estas actividades, la inmensa mayoría de veces no habrá un inquilino mejor, ni peor, simplemente no lo habrá: mejor malo conocido que bueno por conocer. Ahora bien, el hecho de que se fije de salida el punto mínimo de la negociación (50% rebaja y poder utilizar la fianza), deja poco margen de maniobra al propietario …

No hay que perder de vista, para concluir, que hay serias y razonables dudas sobre la constitucionalidad de esta norma, por falta de competencias de la Generalidad para regular esta materia. Pero, como hemos dicho en anterior entradas, el entorno político hace improbable que el Gobierno del Estado interponga ahora un recurso de inconstitucionalidad, al parecer que estas serán las reglas del juego durante unos meses, y mientras no se suspenda ( por recurso del Gobierno del Estado) o se declare inconstitucional por el Tribunal Constitucional, es derecho vigente, y cualquier inquilino que cumpla las circunstancias, se puede acoger a este procedimiento.