Subletting Contract Clause
As you will have seen in the media, there have been many cases of tenants, who have been subletting their property they are renting to tourists.
What! You say, but do you know what your tenants are doing?
Sub letting. Lately there have been many cases of tenants who, after renting a property to use for their own home, then later rent it out as a holiday let to tourists.
This is without the consent of the landlord, so making a nice profit for themselves.
Stop! This is serious; the requirements for renting a property long-term and renting as a holiday let are completely different see Holiday Home Rental in Andalucia
If the authorities find out your property is being rented as a Holiday Let and not registered as one, or even worse a complaint is made by a tourist renting your property as a Holiday Let, then the penalties will be levied against you the owner of the property.
This article addresses some precautions you can take to protect yourself from this risk, and how to act if you are in this situation with your tenant.
Enforcing the Subletting Contract Clause
The Contract: Before signing the lease, check the tenant's solvency and verify that the documents that they provide to prove it are authentic (for example, contact the company that appears on the payroll and the employment contract).
Get references from previous owners of properties they have rented and check them out.
- Include a clause in the contract that prohibits the total or partial subletting of the dwelling.
It is true that the LAU allows partial sub-lease of the dwelling provided it is authorized in writing by the landlord.
However, expressly prohibiting it in the contract will make it clear from the outset that you are opposed to subletting.
- Add in the contract that the house cannot be used for tourist rental or published in any newspaper/magazine or website.
Also indicate that if the Tenant breaches this clause, any fine or sanction imposed by the Administration (for breaching the regulations on tourist accommodation) will be charged to the tenant, and that you will report the facts if you have knowledge of it to the appropriate authority.
What if the Tenant ignores the clause?
If in spite of the clause you have verify that your tenant has sublet your property, start by sending a Burofax notifying them that you are terminating their contract and require them to immediately move out of the property as per the clause in the contract.
Then, report the facts to the appropriate Tourism Administration. In this regard, please note:
- In case of non-compliance with the regulations on tourist accommodation, in some autonomous communities, it is considered joint and several liable to the owner (although the person who is carrying out the activity is the lessee).
- But if you take all the precautions indicated, you can prove that you have no responsibility, as you forbade the subleasing and have opposed it as soon as you have knowledge of it.
If after receiving the Burofax the tenant does not hand over the keys, you will have no choice but to file a lawsuit requesting the termination of the contract and eviction of the house:
- In these cases, the landlord can terminate the contract for several reasons: because the property is no longer intended for the lessee's habitual residence, for breach of any of the clauses in the contract and for performing annoying or illegal activities.
- However, keep in mind that these types of lawsuits are processed by the "ordinary" procedure, so that the eviction of the tenant is not as fast as happens in an eviction for nonpayment (for example, in these cases the sentence to order the eviction can take at least nine months).
- Check the solvency of the proposed Tenant
- Ensure there is a very clear clause in your contract forbidding subletting
- Ensure it is clear in the contract the consequences of failing to comply with any of the clauses will result in the contract being cancelled.
Artículo añadido el viernes 8 septiembre 2017 - Lefebvre - El Derecho, S.A.