June is the month in which university cities begin to empty of students who have completed their training courses and return to their permanent homes. According to the report ‘The Student Accommodation Insights 3.0’, prepared by Deloitte, of the 1,633,000 higher education students in Spain, around 494,000 have to move from their habitual residence to study.
Apart from renting a room in a shared flat – with its inconveniences and problems of coexistence – the usual thing is to sign the traditional lease of a house or the seasonal rental. The differences are transcendental to avoid conflicts in the return of the deposit.
Different types of contract
The traditional lease of housing is a type of rental that offers stability by not having to look for a flat every year, but it is more expensive because in the summer months – when the students return to their family residence – the rent has to continue to be paid.
In this case and at the conclusion of the contract, the deposit is mandatory and in cash of an amount equivalent to one month’s rent, as stated in article 36.1 of the current Urban Leasing Law (LAU).
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On the other hand, there are leases for uses other than housing where seasonal rentals are found, which should not be confused with tourist rentals. They are characterized by greater autonomy of the contracting parties and by the requirement of two months of deposit, as regulated by the aforementioned article 36.1 of the LAU. Among the clauses to differentiate it from a traditional lease, the purpose for which the temporary occupation is carried out must be included and the contract must state that the student maintains his habitual residence in another place other than the rental.
In this case, the student has the advantage that they will only pay the rent for the months of the school year, although they will have to deposit two months of deposit. The disadvantage: that if he continues his studies the following year, he will have to go back to look for another rental home with the foreseeable rise in rent.
In both types of contract, article 36.5 of the LAU recognizes the parties the possibility of agreeing on any type of guarantee, including economic guarantees, for the fulfillment of the contract by the renter and will be additional to the cash deposit (one or two months, depending on the type of lease).
Alejandro Fuentes-Lojo, partner of the Fuentes Lojo Abogados office, recommends that students “sign a housing rental contract and not a seasonal one, in order to benefit from the special protection granted by Title II of the LAU.”
For his part, Daniel Loscertales, a lawyer specializing in real estate law, is inclined towards seasonal rentals, although if the students are going to stay for several years and they like the flat, “the normal lease is better, bearing in mind that each year the tenant can rescind the lease giving thirty days advance notice.
Return of the deposit
The purpose of the deposit is to be a guarantee of the owner against the damages produced in the property or the non-payment of supplies or services (gas, electricity, telephone…). Article 36.4 of the LAU establishes that the balance of the deposit (discounting the damages and supplies pending payment) must be returned in cash to the renter at the end of the lease. The owner will only have to return the difference between what was delivered and the amount to which the responsibility attributable to the student amounts.
If the deposit is not returned one month after the delivery of the keys by the student, this amount will accrue the legal interest on the money: 3% for 2022 according to the General State Budgets.
It must be made clear that the provision of the deposit does not empower the student to stop paying monthly rent and compensate them with that deposit, since the deposit must be paid at the end of the rental.
The most common problem is the refusal, in many cases, to deliver the deposit at the end of the contract, alleging the owner that he has to do revisions on the apartment (paint the house again, clean it, remove stains from use, etc. ), “which is completely inadmissible and if a clause in this sense is agreed upon, it is null and void. The owner cannot claim that the house be returned in the state in which it was delivered on the day, since it is assumed that it will have wear and tear inherent to ordinary use of it, ”says Fuentes-Lojo.
A different matter is that damages or defects have been caused in the home, in which case the property does have the right to have the tenant assume its repair by allocating the deposit to that effect.
The solution to the lack of return of the deposit is to file a lawsuit claiming said amount if after one month from the end of the contract it is not delivered. Fuentes-Lojo recommends that when “the amount claimed is less than or equal to 6,000 euros, the verbal trial process is used, which is faster and less expensive for the citizen.”
In addition, it makes no difference whether the contract is seasonal or habitual residence, since in both cases you can go, since 2019, to the verbal process as established in article 250.2 of the Law of Civil Procedure.
However, as Daniel Loscertales recalls, it must be taken into account that “any issue that now goes to court, the citizen must be patient, as it will take months or years” to resolve.
Deposit in the autonomous community
The Urban Leasing Law also establishes in its third additional provision the possibility for the autonomous communities to establish the obligation of the owners of the leased dwelling to deposit the amount of the deposit (one or two months) and without accruing interest in the administration of the autonomous community or of the designated public entity until the termination of the corresponding contract. Its purpose is tax to justify the tax deductions of the tenants and not doing so can entail the risk of the appropriate administrative sanctions.
Fuentes-Lojo recommends in relation to the deposit of the bail “to be informed of the corresponding regional regulations”. In Catalonia, for example, if the contract is seasonal, there is an obligation to deposit the deposit, but its amount will be proportional to the duration of the contract, “in this way, a proration will be made according to the agreed months of duration, taking as a reference that the two monthly payments of income established by art. 36.1 of the LAU correspond to an annuity contract”.
most communities have regulated the deposit obligationwith the exception of Cantabria, Navarra and the Principality of Asturias, which do not require the delivery of the deposit.
On the other hand, the autonomous communities that establish conditions to access the tax deduction for habitual residence (a requirement that students in seasonal contracts do not meet), require that the landlord has complied with his obligation to deposit the deposit.
In those communities that establish the obligation of the deposit of the deposit, its return by the owner to the student will be compensated with what he has to receive from the regional administration. The landlord can withdraw the amount of the deposit by presenting the deposit receipt and the copy for the landlord of the rental contract, where when returning the deposit they will stamp it as cancelled.
If a month passes from the end of the contract and the regional administration does not return the amount deposited, it will accrue the corresponding legal interest.