Moratorium on renting commercial premises in Spain, the RDL 15/2020

They include the moratorium on renting commercial premises in Spain in the Royal Decree-Law 15/2020 (RDL15/2020), of April 21, on urgent complementary measures to support the economy and employment, and came into force on April 23, 2020. Chapter I (Articles 1 to 5) establishes the requirements and the conditions which, if met, may grant the tenant the right to demand a moratorium on renting payment for a specific time.

Royal Decree-Law is another example of the new positive trend of the rebus sic stantibus clause, as with credit contracts without mortgage guarantee in Royal Decree-Law 11/2020, due to the need to find a mechanism that allows the equivalence of the conditions between the parties to be re-established.

Requirements for the moratorium on renting commercial premises

The main aspects that both landlords and tenants of commercial premises must consider for the application of the moratorium on the payment of renting are:

The moratorium may be requested within one month of the entry into force of RDL 15/2020, i.e. from 23 May 2020.

Application, duration, and economic conditions of the renting moratorium

You can request the moratorium one month after the entry into force of RDL 15/2020, that is May 23, 2020.

The duration may not exceed four months, on the understanding that this period includes the state of alarm, its extensions, and the time to deal with the impact of the health crisis.

Regarding the economic conditions:

• Deferment of renting payment remains free of penalties and does not accrue interest
• The amount owed by application of the moratorium can be divided into instalments over two years as from the end of the state of alarm and its extensions but within the term of the contract.

The distinction between Grandes Tenedores and other lessors

RDL 15/2020 establishes two categories of lessors:

  • Grandes Tenedores or large holders (landlords who meet the requirements established in art.1.1)
  • Other lessors

This distinction is crucial since lessees can impose a moratorium on large holders that will be automatically applied, whereas they can only request it from other landlords.

The only particularity included in RDL 15/2020 is the application of the rental contract deposit and its subsequent replacement.

Tenants who can benefit from the moratorium on RDL 15/2020

RDL 15/2020 distinguishes two types of tenants who can apply for a moratorium, the self-employed and SMEs and establishes different requirements for each.

The requirements for the self-employed are

  • Have the affiliation of self-employed
  • Be registered on the date of the declaration of the state of alarm
  • Have suspended activity
  • Have a turnover for the calendar month before which the postponement is requested reduced by at least 75%, in comparison with the average monthly turnover for the quarter to which that month belongs, referred to the previous year.

The requirements for SMEs are:

  • The company does not exceed the limits established in Article 257.1 of the Spanish Company Act (Royal Legislative Decree 1/2010)
  • There is a suspension of activity
  • There is a reduction in the turnover under the terms previously stated for the self-employed.

Accreditation of requirements

The accreditation of the requirements by the tenant will depend on whether he has had his activity reduced or suspended. The reduction of business will be certified through the presentation of a declaration of responsibility, the suspension through a certificate issued by the State Tax Administration Agency or the competent body of the Autonomous Community. Since the declaration of responsibility is a document issued by the lessee himself, RDL 15/2020 empowers the lessor to request the accounting books to verify said information.

Consequences of an improper application of the moratorium to the tenant

Those tenants who have benefitted from the moratorium without meeting the requirements established in RDL 15/2020 will be liable for the damages and the expenses generated by its application. And this without prejudice to the responsibilities of another order in which they may have incurred.

Subordination of the moratorium established to the agreements reached between lessor and leaseholder

The moratorium established in RDL 15/2020, including the mandatory ones for large holders, is subordinate to the moratorium or income reduction agreements reached between the parties.

Therefore, those tenants who have reached an agreement that includes a moratorium or reduction in rent may not request the application of the moratorium of RDL 15/2020.

Regarding lease contracts of commercial premises concluded with lessors other than large holders, there is no obligation to accept the moratorium for any of the parties.

If you need additional information regarding the moratorium on renting commercial premises in Spain,

This article is not considered legal advice

Nicolás Melchior

Having graduated with a Law degree, Nicolás Melchior specialises in real estate, commercial contracts and ICT law in Spain. Working languages: Spanish, German, English and French. For any query Contact Nicolás Melchior