A few weeks ago, social media was reporting a complaint by a user about the charge of almost 10 euros by a real estate agency in Barcelona to visit a rental property. The amount is not excessive and will not make anyone poorer, especially considering that a normal rent is already 1,000 euros a month, but the issue is an accurate portrait of how the housing market, in this case rental, has gone completely crazy. Real estate agencies that charge for everything, owners who include abusive clauses in contracts – both for rental and sale – and doubts when buying off-plan. This is what people looking for housing are encountering these days. Some are illegal; others, immoral and questionable. Part by part. Charging money for the simple fact of visiting a rental property is not legal, in the opinion of Tomás Felipe de Pedraza, a lawyer at Legálitas. “Article 20 of the Urban Leasing Law (LAU), in accordance with the amendment made by Law 12/2023, of May 24, on the right to housing, indicates that the real estate management costs and those of formalizing the contract will be borne by the lessor,” says the lawyer. De Pedraza understands that this payment for the visit is part of the real estate management. “The spirit of the law is that the owner pays; they can disguise it, but in the end you are imposing an expense on the tenant,” she adds. It is “a roguery contrary to the LAU and illegal,” insists Isabel García-Nieto, partner at AGN Abogados. Likewise, we must not forget that there are still agencies that continue to charge a monthly fee to the tenant, something that has been prohibited since May 2023. And, as if that were not enough, some also charge the owner, so “unjust enrichment” occurs, says Marta Lop, a lawyer at Vilches Abogados. Now, all this applies to habitual homes, that is, those that are rented for five years (seven years if rented to a legal entity). If they are tourist or seasonal apartments, “in which the freedom of the parties prevails, the management and marketing costs may be passed on to either of the two,” says Montserrat Junyent, vice president of the Federation of Real Estate Associations (FADEI). Another illegality that home seekers are encountering has to do with the property transfer tax (ITP). Tenants should be aware that, without their prior consent, real estate agencies cannot impose or charge them for the management of this tax, which is mandatory when a rental contract is signed.
The rent, in advance
A common practice, in this case among landlords, is to demand several months' rent in advance. The LAU makes it clear that the landlord cannot, under any circumstances, demand the advance payment of more than one month's rent. «For some landlords, it is a way of proving the tenant's solvency or of being able to have liquidity in the short term. And the reality is that either the tenant pays it or the tenant loses the apartment,» they say at KLJ Abogados. It is also illegal to ask for an additional guarantee to the deposit that exceeds two months' rent. And the tenant will have to think twice before giving the landlord their bank statements. It is an excessive and unnecessary request. «To justify their financial capacity, it can be done with other documentation such as the payroll or last tax return,» says the lawyer from Legálitas. If one of the parties proposes that the contract be verbal, it is feasible, although it is not advisable. «This type of contract, even if it is legal, creates a lot of insecurity and uncertainty for both parties,» they point out at KLJ. At Vilches Abogados they believe that “although there is a risk for both, the owner is the most affected, since he will not be able to update the rent, he will not have certainty about the duration of the lease and, consequently, he will not be able to recover the property easily,” explains Lop. In recent years it has become popular for the agency to ask for money to reserve the property, whether it is for purchase or rental, or even for making an offer, something that Junyent describes as “inappropriate,” although it is not illegal. However, “this reservation would have to be returned or applied to the deposit or rent whether the conditions are met or not,” says García-Nieto. At FADEI they recommend that “the aspects of the operation are clearly reflected in a document to minimize the risk.” When buying a house there are also abuses, in addition to the obvious one: the price, which has still not reached its ceiling and which has driven out a significant percentage of the population. According to Marta Lop, the biggest abuses are imposing on the buyer the payment of the municipal capital gains tax, which corresponds to the seller, and imputing the notary fees to the buyer. But it is in the purchase off plan where the greatest dangers are hidden. According to Alejandra Parente, head of the real estate area of El Defensor de tu Vivienda, the first thing to analyze is the solvency and track record of the developer or manager, in the case of a cooperative. Then, it is essential to “require a guarantee, that is, a guarantee or insurance, when the first advance payment is made,” says the expert. And she adds: “Although the law is contradictory, we defend, and there is already jurisprudence in this sense, that there cannot be amounts delivered on account without guarantees.” Currently, buyers have two years to be able to recover the amounts paid on account of a home under construction. It is essential to establish a delivery period so that the buyer can terminate the contract in case of delays. Regarding the price, “although the cooperative will never give a fixed price, it is important that this information at least appears in the contract of sale of the house,” says Parente. A clear payment plan and always making payments by bank transfer, never by check, are the last keys. Follow all the information from Economía y Negocios on Facebook and Xor in our weekly newsletter