July 16, 2024 | 4:06


Landlords in Bilbao can set two rental prices due to changes in the Housing Law

Mairenis Gomez

June 7, 2024 | 6:30 pm

Landlords in Bilbao now have the possibility of establishing two prices in rental contracts, a preventive measure in case control of the Housing Law falls

A judge endorses this clause in the contracts if the tenant understands and accepts it. This court ruling is the first to endorse what is known as the Berlin clause, which allows the landlord and tenant to agree in the rental contract on a price capped by rent control. the Housing Law and another higher one so that, in the event that the court annuls the price intervention, the landlord ensures that the rent corresponding to the real market value is paid.

First court ruling that endorses the Berlin clause, ensuring real market entry

On May 24, the Constitutional Court rejected most of the appeal filed by the Junta de Andalucía against the Housing Law. However, it only assessed whether the law invaded powers and not the substance of the matter, the legality of intervening in rental prices. The Court still has seven appeals pending against the law in Catalonia, Galicia, the Community of Madrid, the Basque Country, the Balearic Islands, in addition to the PP and the Catalan Parliament. Once it is ruled, the issue may be raised to the CJEU to rule on whether the price intervention is in accordance with European law.

Landlords' reaction to legal uncertainty

Faced with this uncertainty, many landlords, especially in Catalonia, where it is currently the only autonomous community that applies price control, are already including this clause in rental contracts. In this way, they ensure the market price if, finally, the law is declared null. Regions such as Asturias and Navarra are also studying joining price controls.

Sentence of the Court of First Instance number 55 of Barcelona of May 22

This ruling, still appealable before the Provincial Court, concludes that the clause is neither abusive nor void because the tenant knew "clearly and precisely the burdens derived from the agreement that is the subject of controversy." Therefore, the claim was dismissed in its entirety.

Carlos Muñoz, CEO of CIM Tax & Legal and lawyer who handled the case on behalf of the landlord, explained that the judge valued the transparency of the contract. Landlord and tenant exchanged emails in which the former reported on the operation of the clause and the latter acknowledged the operation.

The tenant's complaint and the clarification of Carlos Muñoz

The tenant denounced that the Berlin clause was abusive because the Urban Leasing Law only allows a single price to be established in the contract, not two. Carlos Muñoz clarified that only one price was agreed upon, indicating that it was reduced by law and that said law was challenged in the Constitutional Court. Therefore, if it was declared void, the agreed price would be charged, that is, the market price.

Background of the case in Barcelona and the impact of the regional housing law

The case refers to a rental contract in Barcelona from June 2021. On that date, the autonomous community was governed by the regional housing law that limited prices, but was finally annulled by the Constitutional Court in March 2022. The reason was that it invaded the state's jurisdiction in civil matters to regulate contractual bases.

Landlords in Bilbao can establish two rental prices in their contracts

News of the Berlin clauses and their legal certainty

However, according to Carlos Muñoz, these types of clauses are also possible today, since the Housing Law is also challenged in the Constitutional Court and may even reach the European court. "We have clients who are agreeing to these clauses because they gain legal security if the Constitutional Court or the CJEU declare income control null and void," he explains.

Ultimately, The Berlin clause represents a measure for landlords to ensure they receive the real market value for their properties, in a still uncertain legal context.. This practice is already being adopted in Catalonia and could spread to other regions of Spain.

More news