The State of Alarm Does Not Exempt the Payment of Rent
The measures approved in response to COVID-19 do not allow tenants to stop paying rent
In our last post, we referred to the measure approved under which evictions and removals may be suspended for a maximum period of 6 months. We clarified in that post that this would only be possible when the tenant is in a newly arisen situation of social or economic vulnerability as a consequence of the effects of COVID-19, together with the requirements that must be met and how such vulnerability must be proven.
Through the enquiries we have received, we have noticed that many people have misunderstood the measure adopted and believe that they can stop paying rent for six months without any negative consequences. We want to make clear that the measure adopted does not allow the tenant to stop paying rent.
What the tenant in a vulnerable situation must do is request from the landlord a deferral or full or partial waiver of the rent and try to reach an agreement. If no agreement is reached and the landlord is a large holder or a public housing entity, the landlord must choose between reducing the rent by 50% or granting a deferral through instalment payments, and the tenant must then make payments in accordance with the agreement reached by the parties or with the option chosen by the landlord.
Where the landlord is neither a large holder nor a public housing entity, the tenant’s only option is to request a reduction or deferral and, if no agreement is reached, apply for the temporary financing support programme approved on 31 March. In no case may rent be withheld without prior agreement with the landlord, since in the event of non-payment the landlord may file a claim seeking termination of the contract and the corresponding eviction, as well as payment of the overdue rents and those that accrue thereafter, together with the costs of the proceedings.
Proof of vulnerability in any proceedings initiated will only result in a suspension for six months, during which, in accordance with the Spanish Civil Procedure Act, two scenarios may arise:
- During the suspension period, the tenant does not pay all outstanding rent. In that case, the claim will be upheld and eviction will be ordered, together with payment of the rent and legal costs.
- During the suspension period, the defendant pays the outstanding rent. In that case, provided the tenant has not previously cured the default, the eviction will be deemed to have been cured by the tenant. However, we understand that the tenant should still be ordered to pay the costs incurred, since the law only provides for no costs to be imposed in cases involving serious factual or legal uncertainty.