Can the owner of a property get his rented house back to use it for himself or his family?

An owner who decides to put his home up for rent usually does so because, at that time, he does not need to use it. However, it is not uncommon that time passes and with it circumstances change, ending up with the need to use the house either for himself or for a family member.

It could happen, for example, that one had his second home in a different territory from the main residence, but, for work reasons, now had to move to that area. Another case that happens frequently is that of someone who has a rented house and, despite the fact that his situation does not change in any way, his son decides to go to study in the place where the rented house is located. In this sense, there are many situations that can lead to an owner seeing the circumstances around him change and may might find it convenient to recover the house he had rented.

The problem that arises here is that the tenant has had nothing to do with these changes. Moreover, the tenant will usually have been fulfilling the rental contract, paying the rent and complying with the rest of the obligations. It seems unfair, therefore, that he should be affected by a situation completely unrelated to him, with the important consequence of losing his place of residence and having to find another place to live.

But what if the parties already foresaw this circumstance in the contract? It could be that the owner of a flat in Valencia, but living in a small town around the area, was cautious and thought that his son was going to need a flat to live in Valencia while he was studying. For this reason, he decided to inform the tenant of this circumstance when negotiating the contract and included a clause to this effect. Would it be valid?

Well, Law 29/1994, of November 24, on Urban Leases, establishes that this agreement is valid. However, a number of conditions must be met. First of all, the tenant always has the right to enjoy the house for at least one year. In other words, you cannot be kicked out before twelve months have elapsed since the beginning of the rental contract. This possibility won’t exist either if five years have passed since the start of the contract. In other words, the need to occupy the home must arise after the first year but before five years have elapsed. In any case, the owner must notify the tenant that he needs the house at least two months in advance, and the tenant must leave within that period.

As for the cases in which the owner has the right to recover the house, it must be due to the fact that he is going to use it as a permanent home for himself or his relatives in the first degree of consanguinity –children or parents– or by adoption or for their spouse in the event of a final judgment of separation, divorce or marriage annulment. Therefore, one will not be able to recover it when there’s no intention to use it as a permanent home or it is not going to be used by the aforementioned people.

Finally, the law also regulates what would happen in the event that the owner says that he needs it, but does not occupy the house. If within three months of the eviction, the dwelling has not been occupied by the owner or his relatives, the tenant will have another 30 days to choose between two options:

1 - Recover the use and enjoyment of the dwelling by a new period of up to five years, respecting the contractual conditions existing at the time of termination, with compensation for the expenses that the eviction from the home had caused;

2 - Be compensated for an amount equivalent to a monthly payment for each year that remains to be fulfilled until completing five years. However, neither of this will not apply if the occupation has not taken place due to force majeure, that is, events that could not have been foreseen, or that, foreseen, were unavoidable.

Unfortunately, the rule leaves the question of how long it will take for the requirement to allocate the property to permanent housing to be considered fulfilled. For example, what if the owner occupies the home within three months, but then sells it the following month? What if a year passes? All these issues must be analysed on a case-by-case basis, taking into account the precedents existing at the moment and what was agreed in the contract.

Ferrer Asociados

Estudio Jurídico y Económico