If you think that a home can only be rented by its owner: you are wrong. In this post we are going to describe several cases in which it is possible to rent an apartment without having to be the owner, always with your express consent and strictly complying with the applicable law.
In the rental market, it is necessary to be cautious to avoid renting a home to a person who is not the owner and does not have the authorization of the owner. There have been cases in which a person publishes a property for rent on real estate portals posing as the owner to fraudulently receive money for the rent. In these cases, a crime of fraud can be given. However, not all cases where the owner does not rent are illegal, the key is to comply with the law. We see all the cases below.
Who can rent a home?
There are different types of people who can rent a home and they are the following:
The owner.
This is the most obvious and most common case. If the property corresponds to several people, all of them must sign the rental contract, unless one is seized by another based on a power of attorney.
The usufructuary.
It is the person who owns the use and enjoys the apartment and has the obligation to keep it. As usufructuary, he will be able to obtain the fruits (the income derived from the rent) that derive from the real estate. In this case, two important aspects should be considered:
– When the usufruct is extinguished (for example, due to the death of the usufructuary) the rental contract will also be extinguished.
– The usufructuary cannot dispose of or reduce the property, these powers only correspond to the owner.
The holder of a real right of surface.
In this case, a person is the owner of what is built on someone else’s land and can rent it. As in the case of the usufruct, rent will be extinguished when the surface right is extinguished.
The squatter.
This is a person who occupies a third-party home with their permission, but without a title (precariously), that is, there is no contract that supports the occupation, but the owner consents to it (for example, it is the case of a person who leaves a flat to a relative). The squatter could act as a lessor with the express permission of the owner.
Urban Leasing Law: Subletting
There is another case in which a person who is not the tenant partially rents a dwelling that is the subletting. This assumption is contemplated in article 8 of the Urban Leasing Law which establishes the following:  ;
1. The contract may not be assigned by the lessee without the written consent of the lessor. In case of assignment, the assignee will be subrogated in the position of the assignor against the lessor.
2. The leased property may only be sublet partially and with the prior written consent of the landlord.
The sublet will be governed by the provisions of this Title for the lease when the part of the subleased property is used by the sublessee for the purpose indicated in article 2.1. If this condition is not met, it will be governed by the agreement between the parties.
The right of the sublessee will extinguish, in any case, when the right of the lessee who subleased does.
The sublease price may not exceed, in any case, that corresponding to the lease.
Therefore, based on the aforementioned regulation we can conclude that:
– The written consent of the landlord is required.
– You can only partially sublet a dwelling (for example, a room).
– The sublease expires when the lease expires.
– The price of the sublet cannot exceed the price of the lease.
In the event that the sublease does not meet these requirements, the contract may be invalid and its termination or annulment could be requested, in addition to compensation for damages.
How can you make sure that the landlord has the authority to rent the property?
Before renting a home, it is essential to take a series of precautions to verify that you are signing with the owner or with a person authorized by him or with a right that allows him to rent.
The first thing you can do is request a simple note of the property in the Land Registry. You can do it by physically going to the Registry that corresponds to the home you want to rent or online at the page registradores.org. In the simple note the owner of the property, its description and the charges it has will appear. If the person who rents you is a usufructuary, their right should also appear registered in the Property Registry and the same happens with the owner of the surface right.
In the event that the landlord is a squatter, you must request the express authorization signed by the landlord and/or that the landlord signs the rental contract.
What can you do if you find out that renting is a scam?
In the press, one can frequently see cases of people who visit a home that they have seen on the internet, give an amount of money as a reservation and the advertisement and the alleged landlord disappear. In this case we may be facing a crime of fraud regulated in article 248 of the Penal Code as follows:
Scam is committed by those who, for profit, use deceit enough to produce an error in another, inducing him to carry out an act of disposition to his own detriment or to the detriment of others.
For there to be a crime of fraud, various requirements must be met, which are the following:
– Let there be misleading behavior.
– An error is induced in the victim.
– An act of disposition occurs due to deception.
– The victim suffers financial damage.
– The perpetrator of the crime acts for profit.
Victim of fraud crime
The crime of fraud has an established prison sentence of six months to three years. In the event that the amount defrauded does not exceed 400 euros, it is understood that there is a minor crime of wasting that is punishable by a mule for one to three months.
On the other hand, it is considered, based on article 250 of the Penal Code, that a type of aggravated fraud occurs if the fraud involves homes. In this case, the penalty is one to eight years in jail and a fine of six to twenty-four months.
If you think you have been the victim of a scam, you should file a complaint with the police.
To avoid being a victim of a rental fraud crime, it is important to make sure that you sign with the owner or with a person who, in compliance with the law, can rent. You can also count on expert real estate consultants to verify the ownership of the rental home or the corresponding real right, before the lease is signed.
In short, you have to know the law and what it allows, verify who the landlord of the apartment is, request a simple note in the Land Registry and, if you are the victim of a rental scam, immediately report it to the police.
