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Score and withdrawal in the sale of leased real estate

16 Apr
Symbolic Saturday April 16th, 2022 0

When buying or selling a leased home, we must pay special attention to the preferential acquisition right that the Urban Leasing Law (LAU) confers on the tenant. It is already known, “never promise what you do not have to give, and do not buy what you cannot pay”.

On this right of preference, we find two differentiated variants, essentially by the moment in which it corresponds to its exercise, but also by who is obliged. The right of first refusal, which enables the lessee, prior notification from the lessor to him, of the details of the sale (price, terms and conditions) that he intends to carry out. The lessee can position himself to be the one to carry it out, leaving the lessor obliged to sell him. There are some exceptions, such as the withdrawal of community members or one that was previously registered in the property registry.

The lessee has 30 calendar days from when he is informed of the possibility to pronounce on his right. Silence is understood as resignation. The validity of the notification and the conditions of sale expire after 180 calendar days, so special attention must be paid to these deadlines, formalizing the sale in the 180-day window and respecting the 30-day notice.

The notification must be reliable, preferably by burofax with acknowledgment of receipt and text certification, proving compliance with the aforementioned obligations in avoiding obstacles in the formalization of the sale, both at the notarial office and at the registry.

On the other hand, the right of withdrawal refers to the power of the lessee to substitute himself in the position of the buyer once the sale has been made, when he has not been previously notified of his right of first refusal, when his terms have been omitted or these were imprecise or, even, when there is notification, the final price is lower than the one notified or the remaining essential conditions are less onerous. Who is obliged here is the buyer

The right of withdrawal expires 30 calendar days from the day following the notification that must be made of the essential conditions in which the sale was made, by delivery of a copy of the deed or document in which it was formalized. In this case, by the buyer to the lessee.

It must be said that the lessor and the lessee can freely agree in the rental contract to waive these preferential acquisition rights, which is common in these contracts. However, this waiver must be express, making specific mention of both trial and withdrawal. Vague waiver clauses or generic reference to the rights of the tenant contemplated in the law will not be accepted.

It is very important to attend to the version of the law applicable to the contract. Let us remember that despite the fact that the Urban Leasing Law has been in force since 1994, there are 10 different versions, all applicable depending on the time the contract was signed. Law 4/2013, on measures to make the housing rental market more flexible and promote it, and Royal Decree-Law 7/2019, on urgent measures in the area of ??housing and rental, deserve special mention, since they presented substantial modifications to the provisions of the urban leasing law in relation to the requirements to understand validates the tenant’s waiver of their preferential acquisition rights.

Why so cautious? It is common to find sales made in good faith entrenched in the registry due to carelessness in fulfilling these obligations, with agreed bank financing and tax settlements already made, which becomes a real headache and wear and tear for the affected party who It has to invest more resources and time to, in some cases, end up rolling back the operation or be forced to initiate other types of legal measures in its defense.

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