# Rent contract clause for early termination



## Septi (Feb 27, 2016)

We are renting an apartment in Barcelona, Spain and have been living here so far for about 10 months. Suddenly, when we have notified our landlord that we are going to leave, he pointed out to a clause that was not mentioned during negotiations and that we have failed to spot when reading the contract (probably because it was well placed on the page, also lacking its own dedicated paragraph):



> En caso de desistimiento anticipado la propiedad podrá cobrar una mensualidad por cada año que quede pendiente por cumplir, computándose a prorrata los periodos inferiores al año.


In English that would mean that if we are going to terminate the contract (the duration of the contract was earlier specified as 3 years), we are to be penalized for early living by month rent for every year there was left of the contract. This would almost completely exhaust our deposit (3 months), and we were counting on this money. We were aware that there should be a penalty if we left during the minimal stay period (which is 6 months), but even that penalty is limited by law, as far as we know.

Is this legal? Would it be reasonable to try disputing this clause?


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## jojo (Sep 20, 2007)

Septi said:


> We are renting an apartment in Barcelona, Spain and have been living here so far for about 10 months. Suddenly, when we have notified our landlord that we are going to leave, he pointed out to a clause that was not mentioned during negotiations and that we have failed to spot when reading the contract (probably because it was well placed on the page, also lacking its own dedicated paragraph):
> 
> 
> 
> ...


I dont know the official answer, I'm sure someone who knows will answer you correctly, but its never advisable to sign a contract without reading it.

Jo xxx


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## xabiaxica (Jun 23, 2009)

Septi said:


> We are renting an apartment in Barcelona, Spain and have been living here so far for about 10 months. Suddenly, when we have notified our landlord that we are going to leave, he pointed out to a clause that was not mentioned during negotiations and that we have failed to spot when reading the contract (probably because it was well placed on the page, also lacking its own dedicated paragraph):
> 
> 
> 
> ...


:welcome:
Yes it's legal & it's standard, since 2013.


A contract for a full 3 years is unusual though. Mostly a one year contract is issued & it rolls over to the max 3 years allowed, with the clause being perhaps a weeks rent (pro rata) per month you leave early


However, since you've signed it, you've agreed to it

edit - I really must read the whole post! Now I see that you mention 6 months. In which case, it depends on whether the contract is for 6 months, rolling over to 3 years as is required for a residential contract - or whether the contract is actually for 3 years.

For instance mine is for a year. Once I passed that year it automatically became extended (no new contract required - it's just the law) to up to a max of 3 years. If I had left before the year was finished there would have been a penalty


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## Pazcat (Mar 24, 2010)

Sometimes when it comes to penalty clauses they are not applicable if you have to move for a reason like you have a new job elsewhere or need to leave the country but that would normally be stated in the contract anyway.

There is a good chance you wouldn't see your deposit back anyway regardless of what excuse they can come up with.


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## xabiaxica (Jun 23, 2009)

Pazcat said:


> Sometimes when it comes to penalty clauses they are not applicable if you have to move for a reason like you have a new job elsewhere or need to leave the country but that would normally be stated in the contract anyway.
> 
> *There is a good chance you wouldn't see your deposit back anyway regardless of what excuse they can come up with*.


sad but true


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## Septi (Feb 27, 2016)

Thanks for the answers!


Pazcat said:


> Sometimes when it comes to penalty clauses they are not applicable if you have to move for a reason like you have a new job elsewhere or need to leave the country but that would normally be stated in the contract anyway.


Yes, we are leaving the country.

We can't find anything like that near that dreaded clause, but it still could be somewhere else in the contract... We'll try to find it. But is this by the law or is it a standard practice? I.e., if it's not stated in the contract, does this condition still exist?


xabiachica said:


> In which case, it depends on whether the contract is for 6 months, rolling over to 3 years as is required for a residential contract - or whether the contract is actually for 3 years.





> 2.2 El presente arrendamiento se conviene por un plazo de tres años.


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## Pazcat (Mar 24, 2010)

Of that I am not sure if it is something you add yourself or if it is a part of law.


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## xabiaxica (Jun 23, 2009)

Septi said:


> Thanks for the answers!
> 
> Yes, we are leaving the country.
> 
> We can't find anything like that near that dreaded clause, but it still could be somewhere else in the contract... We'll try to find it. But is this by the law or is it a standard practice? I.e., if it's not stated in the contract, does this condition still exist?


In that case your contract is for 3 years. 

It was written into the residential rental law in 2013 that this clause can be included in a contract Ley 29/1994, de 24 de noviembre, de Arrendamientos Urbanos.

Article 11


> Artículo 11 Desistimiento del contrato
> 
> El arrendatario podrá desistir del contrato de arrendamiento, una vez que hayan transcurrido al menos seis meses, siempre que se lo comunique al arrendador con una antelación mínima de treinta días. Las partes podrán pactar en el contrato que, para el caso de desistimiento, deba el arrendatario indemnizar al arrendador con una cantidad equivalente a una mensualidad de la renta en vigor por cada año del contrato que reste por cumplir. Los períodos de tiempo inferiores al año darán lugar a la parte proporcional de la indemnización.



Translation : The tenant may cancel the lease, once at least six months have elapsed, provided that they notify the landlord with a minimum of thirty days. The parties may agree in the contract that, in the case of cancellation, the tenant should compensate the landlord with an amount equivalent to one month of rent in force for each year of the contract to be served. Time periods of less than a year will result in the proportional part of the compensation.


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## Gazeebo (Jan 23, 2015)

Septi said:


> We are renting an apartment in Barcelona, Spain and have been living here so far for about 10 months. Suddenly, when we have notified our landlord that we are going to leave, he pointed out to a clause that was not mentioned during negotiations and that we have failed to spot when reading the contract (probably because it was well placed on the page, also lacking its own dedicated paragraph):
> 
> 
> 
> ...



Why are you leaving?


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## xabiaxica (Jun 23, 2009)

Gazeebo said:


> Why are you leaving?


The OP says in a later post that they are leaving the country, although that is immaterial as far as their legal position is concerned.


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## Gazeebo (Jan 23, 2015)

xabiachica said:


> The OP says in a later post that they are leaving the country, although that is immaterial as far as their legal position is concerned.


If their leaving is unconnected with the rental then they should surely pay the landlord what is due. I only asked as we left our 6 month rental due to negligence on the part of the landlady. However, we did not leave the country as we wanted to stay. Fortunately, we had legal cover from an insurance company that was prepared to back us if we had not got our deposit back and were free from the 6 month contract.


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## xabiaxica (Jun 23, 2009)

Gazeebo said:


> If their leaving is unconnected with the rental then they should surely pay the landlord what is due. I only asked as we left our 6 month rental due to negligence on the part of the landlady. However, we did not leave the country as we wanted to stay. Fortunately, we had legal cover from an insurance company that was prepared to back us if we had not got our deposit back and were free from the 6 month contract.


That's breach of contract on the landlady's part. The property was clearly dangerous & therefore not fit for purpose, so there should have been no issues at all with you getting the deposit back, from a legal standpoint.


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## Septi (Feb 27, 2016)

Okay, so at the moment this looks grim... There's one more thing I'd like to know:

We have notified our landlord via email, and they have replied, in particular, pointing out that clause. However, we have also received advice to notify them in a more official way, via bureau fax. Do you people suppose that:


Is this a necessary precaution (in hypothetical case landlord denies they have been notifed), or that the reply from the landlord via email is sufficient proof they have been notified?
How long does the bureau fax take to arrive?
Correos appears to offer sending bureau fax online. Would it be acceptable to use it?


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## xabiaxica (Jun 23, 2009)

Septi said:


> Okay, so at the moment this looks grim... There's one more thing I'd like to know:
> 
> We have notified our landlord via email, and they have replied, in particular, pointing out that clause. However, we have also received advice to notify them in a more official way, via bureau fax. Do you people suppose that:
> 
> ...


He wants Bureaufax, do Bureaufax. I'd do the paper version as well - then he has to sign for it.

As far as I'm aware it's like sending a telegram - so same/next day delivery.


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## Septi (Feb 27, 2016)

xabiachica said:


> He wants Bureaufax, do Bureaufax. I'd do the paper version as well - then he has to sign for it.


He didn't ask for Bureaufax, it was just an advice we got on another forum - to notify him in a way he cannot dispute. He doesn't seem to be disputing this at the moment, so the question is if there's any use in sending it.

By the way, can we print a document at the post office? Or at least ask for paper?


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## xabiaxica (Jun 23, 2009)

Septi said:


> He didn't ask for Bureaufax, it was just an advice we got on another forum - to notify him in a way he cannot dispute. He doesn't seem to be disputing this at the moment, so the question is if there's any use in sending it.
> 
> By the way, can we print a document at the post office? Or at least ask for paper?


You have to advise him in writing, & you've emailed him, he has responded, so that might be enough. Should be really.

Have you had further contact regarding your leaving date? If you get a dialogue going - maybe ask a question at a time in different emails, about utility readings, return of keys etc.,


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## Septi (Feb 27, 2016)

xabiachica said:


> You have to advise him in writing, & you've emailed him, he has responded, so that might be enough. Should be really.


I'm not sure, really. In the event that he wants to take our deposit anyway, isn't it better to make sure he at least doesn't pretend we didn't notify him? What if he decides to force extend our stay for one more month? How probable is that?

As for the text of bureaufax, would something like this be sufficient:


> (Names of me and my wife - we have both signed the contract)
> (Our full address and postal code)
> 
> (Full address of the landlord company, as in the contract)
> ...


Should we also mention the deposit? And how to mention it properly, considering we're not entirely sure if the property can be considered to be in perfect condition.


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## Septi (Feb 27, 2016)

jojo said:


> I dont know the official answer, I'm sure someone who knows will answer you correctly, but its never advisable to sign a contract without reading it.


Thanks Captain. But I admit this was probably the most regrettable signature I have produced so far, and it actually feels terrible to lose so much money like that. Especially considering how careful I usually am around things like that. However, we've recently discovered how did it actually happen in the first place (memory of the days of our arrival has somewhat dimmed, so it took some time to remember). I'll just post it here, so that maybe someone else won't get burned that particular way.

Our arrival was badly timed. I was invited by a company, and before that I've been freelancing with them, so essentially I was working for them all the time through the arrival. I've failed to negotiate a vacation, and worse, the precise time for arrival has coincided with an unusual amount of work being needed particularly from me. Unfortunately, it was difficult to postpone: we had to vacate the apartment we were renting temporarily in Moscow, so we made a decision to go forward, despite the workload.

Upon arrival, I was requested to work extra, in exchange for the company helping us to find a new apartment. We would pick the apartments we like, and a Spanish-speaking colleague (our Spanish was not good enough for that) would accompany us there, helping as a translator. When we have finally found an acceptable apartment (it was difficult; not so much because we were picky, but because many apartments' insurance policy had requirements we couldn't satisfy), we were offered a help from the company with that again: a colleague would read the contract (in Spanish) in the context of local legislature and tell us if there might be any problems. They then said it was just a typical rent contract, nothing special, and told us not to worry. I was still overloaded with work, and we've worked together for years, so I trusted them. When we asked if there would be any problems leaving the apartment if we don't like it after all, the colleague said that there's nothing special, except we of course couldn't leave in the first half of the year. Landlord also failed to mention the caveat.

I'm not saying it's not my fault. I'm just saying that it wasn't pure carelessness, and if someone reading this will find themselves in a similar situation, please watch out.


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## xabiaxica (Jun 23, 2009)

Septi said:


> Thanks Captain. But I admit this was probably the most regrettable signature I have produced so far, and it actually feels terrible to lose so much money like that. Especially considering how careful I usually am around things like that. However, we've recently discovered how did it actually happen in the first place (memory of the days of our arrival has somewhat dimmed, so it took some time to remember). I'll just post it here, so that maybe someone else won't get burned that particular way.
> 
> Our arrival was badly timed. I was invited by a company, and before that I've been freelancing with them, so essentially I was working for them all the time through the arrival. I've failed to negotiate a vacation, and worse, the precise time for arrival has coincided with an unusual amount of work being needed particularly from me. Unfortunately, it was difficult to postpone: we had to vacate the apartment we were renting temporarily in Moscow, so we made a decision to go forward, despite the workload.
> 
> ...


Unfortunately an all too common story  

It's a shame that your Spanish speaking colleague didn't translate the full contract for you - yes it is a typical contract, but you weren't in a position to know what that meant.

This is why we always recommend that if you don't speak Spanish, that you get someone independent to translate the contract for you. I've seen English translations provided by agents & owners which bear little relation to the original Spanish, to the extent that entire important clauses are missed out, notice periods are different etc.. 

Just this week I was asked to look at a contract. The early cancellation clause was in the English version but not the Spanish version! The Spanish version is of course the legal version, so the English owner thought the clause was there - but it actually wasn't. 

Good luck with your move back


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## Septi (Feb 27, 2016)

Thanks, *xabiachica*.

One more thing: do we or our landlord need to sign any document regarding the contract being terminated on our day of departure? Also, do we need to visit the town hall to let the authorities know we no longer live here?


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## xabiaxica (Jun 23, 2009)

Septi said:


> Thanks, *xabiachica*.
> 
> One more thing: do we or our landlord need to sign any document regarding the contract being terminated on our day of departure? Also, do we need to visit the town hall to let the authorities know we no longer live here?


I've never had any document to sign on the day of departure - though if you're feeling unsure about the landlord you could ask him to sign something stating that you have returned the property in good condition etc.

Yes you need to go to the Town Hall & come off the padrón, & also the extranjería to come off the list of foreign residents


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## Septi (Feb 27, 2016)

xabiachica said:


> Yes you need to go to the Town Hall & come off the padrón, & also the extranjería to come off the list of foreign residents


Oh... How long do you suppose it can take at the town hall and what will happen if, hypothetically, we fail to do that? (Considering we currently don't know if we are coming back, but if we are, it probably won't happen for at least a year.)


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## snikpoh (Nov 19, 2007)

Septi said:


> Oh... How long do you suppose it can take at the town hall and what will happen if, hypothetically, we fail to do that? (Considering we currently don't know if we are coming back, but if we are, it probably won't happen for at least a year.)


It literally takes just minutes. The extranjeria may take a little longer depending whether you have to make an appointment etc.

You are (legally) obliged to come off the padron if you move from that area - same with 'residencia' really.

If you don't do it, you may be liable for tax as you will be deemed to be still living in Spain - best to do things correctly.


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## Septi (Feb 27, 2016)

Can we notify the town hall remotely, via mail (e-mail or paper)?


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## snikpoh (Nov 19, 2007)

Septi said:


> Can we notify the town hall remotely, via mail (e-mail or paper)?




Not as far as I know - Spain doesn't do technology!!


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## xabiaxica (Jun 23, 2009)

Septi said:


> Can we notify the town hall remotely, via mail (e-mail or paper)?


Some Town Halls (Dénia is one) do have the facility to do this online. Check your local ayuntamiento website


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