The new Law for the Right to Housing that recently came into effect in Spain marks a significant shift in the regulation of rental commissions and fees charged by real estate agencies. This law explicitly prohibits charging these fees to tenants, which was a common practice in many regions, where tenants were typically required to pay a monthly fee plus VAT to the agencies. While most agencies have adapted to this new law, a minority might still try to find loopholes to continue charging tenants. In this article, we will explore the situations in which real estate agencies cannot charge rental commissions to tenants and what tenants can do if they are asked to pay such fees against the law.
Understanding the New Housing Law
The new Law for the Right to Housing introduces changes to the Law of Urban Leases (LAU). One key modification involves Article 20 of the LAU, which now stipulates that real estate management and contract formalization expenses are the responsibility of the landlord. However, it’s important to note that this provision applies exclusively to leases of primary residences. Some types of rentals, such as temporary rentals for students or temporary workers, rooms, commercial spaces, offices, garages, and industrial units, fall outside this prohibition. Therefore, a real estate agency cannot charge a tenant a commission for a primary residence lease, and it is the responsibility of the property owner to cover these costs.
Does the Law Apply in Your Autonomous Community?
There have been instances where real estate agencies claim that the prohibition of charging tenants doesn’t apply in their autonomous community. Some even suggest that the law won’t be enforced in regions governed by certain political parties. This is incorrect. The prohibition of charging tenants is outlined in the Law of Urban Leases, which applies across Spain. While there are areas where regional regulations may be implemented, such as the regulation of tense housing markets, the changes to the LAU, including the prohibition of charging tenants, are applicable nationwide.
Tricks Employed by Some Agencies
Despite the legal prohibition, some agencies may still attempt to charge tenants through various means:
1. Charging for Reservation Fees
Before signing a rental contract, it’s common for tenants to make a reservation payment to the real estate agency. However, this fee should be passed on to the landlord and deducted from the security deposit or first month’s rent. All conditions related to the reservation should be clearly documented and signed by all parties involved.
2. Forcing Acceptance of Agency Fees
The law strictly forbids any agreement against its terms. Even if tenants sign an agreement to pay the fees, they are not obligated to follow through, as this goes against the law.
3. Misleading Invoice Descriptions
Some agencies may include items like „property search” or „real estate consultancy” on their invoices. If the rented property is part of the agency’s portfolio, they cannot charge the tenant for these services.
4. Mandatory „Tenant Services”
Agencies might pressure tenants into signing a contract for a post-rental management service, even after the lease has been signed. Tenants can choose to cancel this service immediately after signing the rental contract.
5. Charging for Key Handover or Registration Assistance
Charging tenants for handing over keys or helping with the registration process is an extreme and unacceptable practice.
What Can Tenants Do?
If a real estate agency tries to force tenants to pay commissions unlawfully, tenants have several options:
1. Keep Evidence of Listings
Tenants should save and document rental listings. If the listing doesn’t mention tenant fees, the agency cannot charge them.
2. Request a Refund
Tenants should formally request a refund from the agency, citing the relevant law and providing evidence to support their claim. This can be done in person, via certified email, or by registered mail.
3. Legal Action
If the agency doesn’t comply with the refund request, tenants can file a „monitorio” (small claims) lawsuit to recover the money. If the amount is less than €2,000, they won’t need a lawyer or legal representative.
4. Record Conversations
Tenants can legally record conversations where agency representatives insist on charging illegal fees. This can be used as evidence in a legal dispute.
5. Seek Consumer Protection
Tenants can also contact consumer protection organizations like FACUA, which have been actively reporting and addressing such cases.
In conclusion, the new 2023 Housing Law in Spain has made it clear that real estate agencies cannot charge rental commissions to tenants for primary residence leases. Tenants should be aware of their rights, keep thorough documentation, and take appropriate steps if agencies attempt to charge them unlawfully. Understanding the law and asserting your rights is essential in preventing illegal commissions in the rental market.
Frequently Asked Questions
1. What is the 2023 Housing Law in Spain? The 2023 Housing Law, officially known as the Law for the Right to Housing, prohibits real estate agencies from charging rental commissions to tenants for primary residence leases in Spain.
2. What types of rentals are exempt from the prohibition on charging tenants? The prohibition on charging tenants applies specifically to leases of primary residences. Temporary rentals, room rentals, commercial spaces, offices, garages, and industrial units are exempt from this prohibition.
3. Can real estate agencies charge tenants for reservation fees? Real estate agencies can collect reservation fees from tenants, but these fees must be passed on to the landlord and deducted from the security deposit or first month’s rent.
4. Can tenants take legal action against agencies that charge illegal commissions? Yes, tenants can take legal action against agencies that charge them illegally. They can request refunds, file „monitorio” lawsuits for amounts less than €2,000, and seek assistance from consumer protection organizations.
5. Where can tenants seek help in dealing with agencies that charge illegal commissions? Tenants facing issues with agencies charging illegal commissions can reach out to consumer protection organizations such as FACUA for assistance and reporting.
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