Tenency Agreements

My girlfriend and I took up occupancy of a house in Villa Costa, near Villamartín, without any contract as the owner who lives in Almoradi preferred it that way.   We were informed at the time that the property would shortly be for sale as the vendors needed the money.  I said that I may be able to purchase the property towards the beginning of the new year and I am currently in the UK assessing this option.
Now I hear through the grapevine that the property is being sold to a third party, and my girlfriend spoke to the wife of the vendor, and was assured that this was not the case.   At this point we had the opportunity to move elsewhere but allowed this to pass as we were assured that no sale was taking place.
At the time of paying the rent at the end of January, my girlfriend was informed that we had until the end of March to move out of the property and that they had been trying to contact us about this.   Both owners/partners pass our house regularly.

In mid-February we were informed that the 10th of March was the date for leaving the property, as I am informed that the property is to be sold to a third party.  Due to work commitments I am unable to return to Spain until April and I have plans to return then, but I should be grateful for your comments on the following points:
1.    should a contract have been provided, for how long, and what notice would we have been entitled to?
2.    We received no formal notification to quit the premises, just a request on the telephone
3.    We were originally told the end of March, now this has been shortened to the 10 March

How do we stand?

Answer
We have the opportunity to make comments on many occasions about the current law that relates to tenancy agreements, and which was issued in November 1994 and took effect in January 1995.   Regulated under this law are tenancy agreements which cover those apartments or houses, which require a minimum term of five years, with the object to satisfy the needs of the permanent residence for the tenant.  This law also rules those tenancy agreements which are for a different use, such as those for business or commercial use etc... but excluded from this law are those agreements, amongst others,  that are temporary agreements for holidays and those which are for “industry” (rented for current businesses providing all the necessary elements for its continuation etc...).

In an attempt to answer your question, it is true that you should have signed a contract at the time of the occupation of the property, between yourself and the landlord, establishing the mutual commitments for both parties and at that time the contract should have been classified under the above law, or as a contract for a temporary/seasonal period for holidays.   In view of the fact that the commitments and rights are totally different for these two types of contract, it is important at the time of signing the contract for it to be established if it was to serve your needs as a permanent residence.  You would then also have a right of preference for acquisition over any third party (tanteo), which is a right which has to be exercised before a sale can take place, or even a right (retracto in Spanish) in case of a sale to a third party without your knowledge.

Both rights have to be exercised within the period of time established in article 25 of the above law for tenancy agreements, and the communication of these circumstances must be made in favour of the tenant by the landlord.  Nevertheless, in your case, we are in a situation in which there seems to be no contract; nor does there appear to be any other form of proof  to be taken into account (such as witnesses, payment of utility bills etc...) and this proof will always depend on the criteria specified by the Judge.
In your circumstances, everything you say could be denied by the landlord as there is no written proof; in view of the above probably the landlord will argue that you are in a typical scenario in which you are using the property as a favour granted by him or, in other words, you are occupying the property without any title to occupation.   This is called in Spanish law precario and in any case obliges the landlord to follow a procedure in order to make you leave the premises.
Then, in answer to your question as to whether you should have received any communication regarding leaving the property,. Article 1565.3 of the Ley de Enjuiciamiento Civil rules that in order to start the legal action to make you vacate the property, it will be required to give notice in this respect a month in advance – this communication obviously has to be made in writing and by an authentic means.   A telephoned request is therefore insufficient for this purpose.  The law requires in this situation, in giving one months notice in advance, prior to starting the legal procedure for the eviction of the “tenant”.   Therefore if you do not vacate the property, then a Judge has to declare these circumstances, otherwise you cannot be forced to leave the property.

These articles are intended for guidance and information only, and we should stress that our readers should always consult a qualified professional in respect of individual legal and fiscal problems or enquiries.

Article courtesy of Fernando Aliaga, Abogados, Javea