Many tenancy agreements include agency fees, which are the costs charged by an agency or intermediary for arranging the signing of the agreement.
Traditionally, in Spain, these costs have been borne by the tenant, but recent legislation has introduced important changes that could allow tenants to claim these costs.
I.- WHAT ARE BROKERAGE FEES?
Agency fees are the fees charged by an estate agency for its involvement in the signing of a rental contract. These fees usually cover the services provided by the agency, such as the search for tenants, the drafting of the contract and the administrative management of the transaction.
In the past, these costs were usually borne by the tenants, even though the agency is directly appointed by the landlord to manage the letting of his property. However, with the 2023 Housing Law in Spain, there has been an important change that affects how these costs should be shared.
II.- WHAT DOES THE 2023 HOUSING LAW SAY?
The 2023 Spanish Housing Law introduces an important measure:
The costs of managing the property and formalising the contract must be borne by the landlord, not the tenant.
This means that the landlord, as the beneficiary of the agency’s services, must bear the costs associated with the intermediation.
Courts have recognised the right of tenants to recover these costs when the estate agent has been engaged by the landlord, as the tenant does not directly benefit from these services.
III. WHAT TYPE OF LEASES ARE AFFECTED BY THE NEW RULES ON BROKERAGE FEES?
1. Rentals of habitual residence (residential use):
The costs of finding a property and formalising the contract are always borne by the owner (landlord). This includes the fees of the estate agents or managers involved in the mediation.
The aim is to prevent tenants from taking on additional financial burdens when looking for accommodation.
This rule applies only to leases for permanent residence, i.e. those intended to satisfy the tenant’s permanent housing needs.
2. Letting of commercial premises or use other than as a dwelling:
In the case of leases of commercial premises, offices or immovable property for use other than as a principal residence, the brokerage costs are usually freely agreed between the parties, as they are not strictly regulated as in the case of leases of principal residences.
In many cases it is customary for the tenant to pay these costs, especially if he negotiated directly with the estate agent.
3. Tourist or temporary rentals:
In the case of tourist or short-term rentals, agency fees are usually included in the total rental price or are explicitly mentioned in the contract.
IV.- STEPS TO TAKE TO CLAIM AGENCY FEES
If you signed a tenancy agreement after the entry into force of the Housing Act and you paid the agency fees, you may be entitled to claim these amounts.
You can claim if
– You signed the tenancy agreement after 6 March 2019.
– You paid agency or property management fees that should have been paid by the landlord.
– The agent was employed by the landlord and not by you.
Here are the steps you need to take:
1. Check your tenancy agreement
The first thing you should do is check your lease to see if the agency fees have been charged in your name.
It is also useful to have any invoices or proof of payment that you have paid these costs.
2. Negotiate amicably
Before taking legal action, you can try to negotiate amicably with the landlord or agent.
Send them a formal letter or email explaining that under the new regulations, agency fees are to be paid by the landlord and asking for a refund of the amounts paid in error.
3. Out of court complaint
If amicable negotiation does not work, you can make an out-of-court complaint.
This involves sending a formal written complaint to the landlord or estate agent asking for a refund.
This document is important to show that you have tried to resolve the dispute amicably before going to court.
4. File a complaint
If you do not get a satisfactory response through negotiation or out-of-court complaint, you may decide to take the matter to court.
To do this, you must consult a lawyer specialising in property law.
V.- WHAT HAPPENS IF THE CONTRACT PREDATES THE LAW?
It is important to remember that the 2023 Housing Act is not retroactive, so it only applies to contracts signed after its entry into force.
If your tenancy agreement was signed before the Act was passed, it is likely that you will not be able to claim back any agency fees you have paid. However, it is always advisable to consult a lawyer to confirm your situation.
VI.- DOCUMENTATION REQUIRED TO MAKE A CLAIM
In order to make an effective claim, it is advisable to collect the following documents:
– Rental agreement: state whether the agency fee was paid by the tenant.
– Invoice or proof of payment: Proof that you have actually paid the agency fee.
– Email or letter of complaint: If you choose to make an amicable or extra-judicial complaint, keep a copy of the messages sent and received.
VII.- TIME LIMIT FOR CLAIMS
The time limit for claiming these expenses depends on whether you consider that there has been unjust enrichment on the part of the agency or the landlord.
In general, the time limit is 5 years from the date of payment.
CONCLUSION
When the Housing Act 2023 comes into force, tenants will no longer be obliged to pay estate agent’s fees, which will now be paid by the landlord.
If you have paid these fees in error, you can recover them by following the steps outlined above, from amicable negotiation to possible legal action.
Make sure you are well informed and supported by current legislation to protect your rights as a tenant.
If you require further details or information about your specific case, please do not hesitate to contact us.
