Legal regime of the moratorium

1. Scope of the moratorium

It consists of a deferment of rent instalments. Royal Decree Law 15/2020 does not contemplate the possibility of lowering the rent.

2. Are common expenses included in the regime established by RDL 15/2020?

No. RDL 15/2020 only refers to the rent and does not mention other costs such as common expenses, so the latter could still be invoiced on a monthly basis and should not be included in the scope of the moratorium regime. 

3. Deadline for requesting the application of the moratorium regime

One month from the entry into force of RDL 15/2020 (April 23, 2020).

4. Which leases are included within this legal regime?

4.1. Lease agreements other than dwellings (e.g. Leases for commercial or industrial purposes)

5. Applicants. Who is entitled to file the request?

5.1. The tenant (individual or legal entity) of a business premises lease.

5.2. This tenant must be (i) self-employed or (ii) a SME.

6. What requirements must self-employed persons and SMEs meet in order to benefit from the legal regime set out in RDL 15/2020?

6.1. Self-employed: they must be affiliated to and registered with the Special Social Security Scheme for Self-Employed Workers or Autonomous Workers on the date of the declaration of the state of emergency by Royal Decree 463/2020 of 14 March.

6.2.SMEs: they must comply with the requirements of Article 257 of Royal Legislative Decree 1/2010, of 2 July, which approves Spanish Corporate Law, i.e. to meet, for two consecutive financial years (at the closing date of each of them), two of the following requirements, that (a) assets do not exceed €4 million; (b) net annual turnover does not exceed €8 million; and (c) the average number of workers employed during the financial year does not exceed 50.

6.3. The leased premises must be used for the economic activity carried out by the self-employed person or by the SME.

6.4. The activity of the self-employed person or the SME must have been suspended as a result of the entry into force of Royal Decree 463/2020, of 14 March, or by resolutions issued by the competent authority.

6.5. In the event that the activity of the self-employed person or the SME is not directly suspended as a result of the entry into force of Royal Decree 463/2020 of 14 March, tenants must give evidence that:

1. they qualify as beneficiaries of the RDL (see points 5 and 6 below) and;
2. their activity has been suspended due to the state of emergency or that they have experienced a reduction in revenue in the current month of at least 75% from the monthly average income of “the quarter to which such month belongs in the previous year” (that is, that sales in April 2020 are 75% lower than the monthly average of Q2 2019).

7. What documents should be brought by the tenants to comply with the provisions of RDL 15/2020?

In order to give evidence of points mentioned in paragraph 6.5. above, tenants must submit the following documentation: (i) a certificate issued by the Agencia Tributaria or the competent body of the autonomous community showing the cessation of their activity, as declared by the applicant for tax / social security purposes or (ii) a signed responsible statement –declaración responsible  ̶ attesting the 75% fall in sales. There are no provisions as to how tenants should evidence this aspect – we understand that this should be proven by disclosing their annual accounts for the last two fiscal years. In any case, landlords are entitled to request that the accounting books on which such a statement is based are shown to them.

8. Does this scheme apply if the tenant and the landlord have reached a prior agreement?

No. When a prior agreement has been reached on deferment of rent, or a write-off, what the parties have agreed upon prevails (pacta sunt servanda).

9. Is the RDL 15/2020 compatible with the rebus sic stantibus rule?

We consider that RDL 15/2020 should imply the non-applicability of the rebus sic stantibus principle insofar as this concept only applies when (i) force majeure is not foreseen in the lease agreement and (ii) that the Spanish legislator has not expressly stated the legal regime to be applied in those cases (which is not the case now with the adoption of RDL 15/2020).

Case of a landlord (individual or company) that owns more than 10 urban properties, excluding garages and storage rooms, or a built area of more than 1,500 sqm

10. What does the RDL 15/2020 mean by large landlord (“gran tenedor”)?

These are individuals or companies that own more than 10 urban properties, excluding garages and storage rooms, or a built area of more than 1,500 sqm.

What does RDL 15/2020 foresee in those cases?

The effect of the moratorium is a deferment of rent instalments from the month following the tenant’s request up to (a) the date when the state of emergency ends or (b) a maximum of four months (if the state of emergency period is insufficient in relation to the impact caused by COVID-19).  Instalments not paid now shall be payable by the tenant (without any additional interest or penalties) over a period of two years (but under no circumstances may exceed the term of the lease or any of its extensions) following (a) or (b), pursuant to a calendar of instalments to be agreed between the parties.

11. Is the landlord entitled to challenge the tenant's petition?

Yes (e.g., on the grounds that the tenant does not meet the legal requirements).

However, if the landlord does not answer or challenge the petition the moratorium may be applied automatically.

However, if the tenant does not comply with the requirements (detailed in paragraphs 6.4 and 6.5 above), the landlord may claim damages for the incorrect application of the moratorium. 

Case of a landlord (individual or company) that owns less than 10 urban properties, excluding garages and storage rooms, or a built area of less than 1,500 sqm

12. What does RDL 15/2020 foresee in the case of small landlord (“pequeño tenedor”)?

12.1. The RDL 15/2020 only mentions a "temporary and extraordinary deferment of rent instalments". There is no mention of the accrued interest (therefore this aspect shall be agreed by the parties).

12.2. In this case, both tenant and landlord may use the deposit (“fianza”) to pay all or part of any monthly rent. If the deposit is available, the tenant must replace it within one year from the conclusion of the agreement or within the remaining term of the lease, if this period is less than one year.

13. Is the landlord entitled to challenge the tenant's petition?

The RDL 15/2020 does not mention this issue, so we understand that the measure is not automatic.

Therefore, there must be an agreement between the parties on deferment of rent instalments. Otherwise, it would not apply.