Consumer makes public the most common abusive practices in rentals

MadridThe Ministry of Social Rights, Consumer Affairs and the 2030 Agenda has set itself the goal of ending abusive practices in rental contracts. Now, in addition to pursuing large real estate companies –These clauses are those that have been declared judicially or legally abusive and that form part of the complaints usually filed by tenants.

Management or contract formalization fees

Expenses related to real estate management and contract formalization must fall on the owner, so agencies cannot transfer costs to tenants "under any concept or denomination." This prohibition, as recalled by the ministry, applies regardless of the name given to these costs, as long as they correspond to services provided for the benefit of the owner and not the tenant. For example, managing visits or presenting the property.

Deposit or additional guarantee

Although a deposit of one month's rent is mandatory and an additional guarantee may be optionally agreed upon, by law this cannot exceed two monthly installments of the rent, which is why "it is abusive to demand amounts higher than these legal limits under any circumstances".

Regarding the refund, the clause that conditions the return of the deposit to the full compliance with the contract duration is void, as it establishes a hidden "penalty" not provided for by law. Courts, in fact, have interpreted that withholding the deposit or not returning it for the mere fact of not having exhausted the foreseen contract period has an "indemnifying or punitive" purpose that does not fit with the law.

Indemnities for breach of contract

Although there is the possibility of agreeing in advance on compensation for the tenant's breach of contract, they cannot be "disproportionately high". Courts have interpreted that this disproportionality exists and that, therefore, the clause is abusive when the compensation that the tenant must pay to the owner for, for example, eviction amounts to quantities that triple the daily rent of the contract. Courts have also considered null and void clauses that generally impose on the tenant "the assumption of judicial expenses derived from the breach of contract".

Contract negotiation

Also abusive are clauses not individually negotiated and expressly unconsented practices that, contrary to good faith, generate a significant imbalance of the rights and obligations of the owner and the tenant, to the detriment of the latter. To assess their abusive nature, the contract must be "negotiated and not unilaterally imposed".

However, from the Ministry of Consumer Affairs, they remind tenants that they can review their contracts to detect possible abusive clauses and file "claims" to ensure compliance with current regulations. In parallel, it is coordinating surveillance campaigns of the real estate market together with the autonomous communities.