ALGUNAS CUESTIONES SOBRE LA FACULTAD DE DESISTIMIENTO DEL ARRENDATARIO.

Abstract

Several articles of the Civil Code are there to remind us that the parties to a lease are bound by that lease and that neither of them can unilaterally sever the bond (Civil Code, articles 1091, 1254, 1258, 1256, etc.). Notwithstanding this basic rule on the bond between tenant and landlord, legislation recognises the possibility of unilateral abandonment of a lease in certain events (Civil Code, articles 1594, 1700.4, 1732; Royal Decree-Law 1/2007, sections 68 et seqq.). One of these cases is established in section 11 of the Urban Lease Act. The tenant (not the landlord) is allowed to abandon a residential lease on two months' notice provided that the lease was originally arranged for a term of more than five years and has in fact lasted for at least that long. The Urban Lease Act does not establish this power of lease abandonment for any use other than residential or for residential leases arranged for a term of less than five years. Therefore, in these latter cases, if the tenant unilaterally abandons the lease, waiving possession of the property and ceasing to pay rent, the tenant will incur in breach of lease, empowering the landlord to demand either enforcement (payment of rent as it becomes due) or cancellation of the lease (eviction), with payment for damages. However, jurisprudence on this particular point is neither clear nor uniform.