It is undeniable today that the persistent pandemic situation caused by COVID-19, in which we have been immersed since last March, has led to a delicate situation on a social level, but also in the economic sphere. All of this has been accompanied by a cascade of regulations in the form of Royal Decree-Laws that attempted to respond to the needs imposed by the most immediate reality.

The following is a brief review of the regulations currently applicable to the business premises lease, both from the point of view of the lessor and the lessee.

Firstly, it should be borne in mind that la Ley 29/1994 de Arrendamientos Urbanos (hereinafter, LAU) is the law which generally regulates leasing for use other than as a dwelling, which includes the lease dealt with here. The note that differentiates it fundamentally with respect to the rental of a dwelling lies in the essential role of the autonomy of the will. In this sense, Article 4 LAU establishes in its third point that “leases for use other than as a dwelling are governed by the will of the parties, failing which, by the provisions of Title III of this law and, supplementary, by the provisions of the Civil Code”. In contrast to residential leases, the legal regime of leases for other uses is much less protective, and revolves around the free agreement between the parties, including matters relating to the duration of the contract, the rent, and it’s updating. There are also discrepancies between the two concepts, including the special compensation to the lessee who must leave the leased premises for 5 years or more due to the expiry of the contractual term, provided that the lessee has expressed his or her wish to renew the contract for another 5 years 4 months prior to the expiry of the contract.

In parallel to the above, Real Decreto-Ley 15/2020 on urgent complementary measures to support the economy and employment already introduced some moratoriums in the field of leases for use other than housing that are still in force today for those who requested their application to the lessor within one month of its entry into force. In this case, the text distinguishes between landlords considered as large landlords and other tenancies. The former must accept the moratorium on the payment of rent for the duration of the state of alarm and its extensions, with the possibility of extending this period by a further 4 monthly payments, and in the case of other leases, the lessee may request the lessor to temporarily defer payment of the rent. In both cases, the law favours an agreement between the parties, prior to the automatic application of its clauses.

Subsequently, Real Decreto-Ley 35/2020 on urgent measures to support the tourism, hotel and catering and commerce sector and on tax matters regulated, among others, additional reductions and moratoriums on leases of premises or industry. Although the possibility of applying for these reductions and moratoriums ended on 31 January, the agreements signed between the parties by virtue of this legal text before this date are still covered by the measures of this regulation until the end of the state of alarm.

In Catalonia, the same possibility of applying for these reductions and moratoriums is established in el Decreto-Ley 34/2020 on urgent measures to support the economic activity carried out in leased business premises, of the Generalitat de Catalunya, but, unlike the state regulations, it maintains as of today the possibility of making the application as a consequence of the measures of suspension and restrictions of activity decreed by the competent authorities. In light of this regulatory text, tenants affected by the restrictions will be able to request a 50% reduction in the rent for the part of the use lost. That is, for cases of suspension of the activity, the reduction of 50% of the total rent and in cases of limitation of use, the reduction of 50% on the part lost. To this end, it is established that the guarantees provided can be imputed to overdue rents, which must be returned within one year of the disappearance of the aforementioned circumstances, excluding the obligatory legal deposit and those others deposited with a competent official body.

From what has been seen here, it is clear that, in each of the regulatory texts, the ultimate aim is to reach an agreement between the parties that allows the appropriate measures to be adjusted to the specific needs of each of them. This spirit has been reinforced in the urgent measures decreed at both state and autonomous community level, as the pandemic situation has made it necessary to deal with a particularly complex reality.

Laia Campabadal