Have you rented a flat and need it as a home for your child? It is quite common to have a rented property and the need arises to use it for a child or other family member. In these cases you may ask yourself: Can I throw out my tenant if I need a flat? So, in this blog we will tell you all about the regulation of the Urban Leases Law and the obligations that landlords must comply with.
Is it possible to evict a tenant, even if the contract has not ended?
The answer is yes, but one of the two circumstances regulated in the Ley de Arrendamientos Urbanos must be present:
Breach of the obligations derived from the rental contract by the tenant.
Article 27 of the Ley de Arrendamientos Urbanos regulates the causes for termination of the rental contract. In general, the contract can be terminated by the landlord in the event of breach by the tenant of any of the obligations derived from the contract and, in particular, in the following cases:
– Failure to pay the rent or, as the case may be, any of the amounts whose payment has been assumed or corresponds to the lessee.
– Failure to pay the amount of the deposit or its updating.
– Unconsented subletting or assignment.
– Damage caused maliciously to the property or works not consented to by the lessor when the latter’s consent is necessary.
– When annoying, unhealthy, harmful, noxious, dangerous or illicit activities take place in the property.
When the dwelling ceases to be primarily intended to satisfy the permanent housing needs of the tenant or of the person who actually occupies it.
Need for the dwelling on the part of the lessor.
In this case, the requirements regulated in the LAU must be fulfilled. These are described in detail below.
How can I get my rented accommodation back if I need it?
If you are wondering: Can I evict the tenant if I need the flat? The answer is yes, but you will have to comply with the legal requirements.
The regulation of this possibility is contained in article 9.3 of the Law on Urban Leases, which establishes the following conditions:
– That one year of the duration of the contract has elapsed, if the lessor is an individual.
– That the contract expressly states the need for the lessor to occupy the rented dwelling before five years have elapsed in order to use it as a permanent dwelling for himself or for his relatives in the first degree of consanguinity or by adoption or for his spouse in the event of a final judgement of separation, divorce or marriage annulment.
– The tenant must be notified of the need for the rented dwelling, specifying the reason, two months before the date on which the dwelling is needed.
– To occupy the dwelling within three months of the termination of the contract. Otherwise, the tenant may choose between:
a) To recover the use and enjoyment of the rented dwelling for a new period of five years and under the same contractual conditions as before, with compensation for the expenses related to the eviction.
b) To be compensated with an amount equivalent to one month’s rent for each year remaining to complete five years, unless the occupation has not taken place due to force majeure.
As a consequence of the above, in order to terminate the contract due to housing need, it is necessary that all the requirements we have seen are met and that this need is demonstrated.
Case law relating to the landlord’s housing need
In relation to the regulation on the termination of the contract due to the need for the dwelling by the lessor or his relatives, it is interesting to know what the case law says. Let us now look at various rulings:
– Supreme Court ruling 181/10 of 18 March 2010.
In this case, the landlord was found to be in the right, as the dwelling did not meet the required conditions of habitability.
– Judgement of the Provincial Court of Guipúzcoa number 89/11 of 18 March 2011.
In this case the provincial court held that a generic communication expressing a future possibility of the supervening need for the dwelling is not enough, but that the reason why the dwelling is needed must be expressly stated.
– Judgement of the Provincial Court of Albacete 6/2004.
In this case, the landlord’s claim to terminate the rental contract due to the need for the dwelling was rejected.
From the jurisprudence of these and other courts on this matter, several circumstances can be derived that will influence whether or not the request for termination of the contract due to the need for housing for the landlord or his family members will be successful:
– Ownership of another dwelling by the lessor in the same building.
– Non-existence of a need for the dwelling by the lessor.
– Failure to prove ownership of the dwelling.
– That the tenant has fulfilled all the obligations derived from the contract.
How to make a model letter to notify the tenant of the need to terminate the contract in order to use the dwelling by the landlord?
As we have seen, in order to terminate the contract, the tenant must be notified of the landlord’s need for housing. The communication may have the following content:
– Details of the tenant.
– Address of the tenant for notification purposes (the rented property).
– Date of the communication and its subject: notification of the termination of the rental contract due to the landlord’s need for housing.
– Description of the landlord’s need for the dwelling and relation with the clauses of the contract where this need is regulated and article 9.3 of the Law on Urban Leases.
– Accreditation of the landlord’s need. For example, a divorce decree or other document.
– Date on which the eviction is to take place.
– Signature of the letter by the landlord.
Along with all of the above, it is necessary to remember that the notice must be given two months in advance and after one year has elapsed in the duration of the contract. In addition, it is advisable that this communication is reliable, so it can be done by means of a burofax with acknowledgement of receipt and a text certificate.
What happens if the tenant does not vacate on the date stated in the notice?
It may happen that all the requirements are met for the landlord to be able to repossess the rented accommodation for himself or his family members and the tenant does not evict him. In these cases, the landlord should gather all the evidence relating to what happened (rental agreement signed by both parties, communications with the tenant and proof of the need for the property for himself or his family members), consult with a lawyer who is an expert in real estate law and, if the action can be successful, file a lawsuit for breach of contract in the appropriate courts.
Therefore, if you want to evict your tenant because you need the flat for yourself, your child or another family member, it is necessary that this circumstance is stated in the contract, that the tenant is notified in a reliable manner and that you meet all the legal requirements.
