Selling a Spanish property with a tenant in it

Key rules

• Vacant possession: You cannot promise an empty home unless the tenancy ends or the tenant leaves.
• Registered lease: A registered lease binds the buyer for its full term.
• Tenant's right to buy: The tenant has 30 calendar days after proper notice of your price and conditions to buy on the same terms.
• Proof of notice: Keep proof of notice, because the registrar will not register the sale without it or a valid waiver.

Can you sell with the tenant in place?

Yes, but you cannot promise a buyer an empty home. The lease normally survives the sale, and the tenant may have a right to buy first. Vacant possession is only possible if the tenancy ends or the tenant leaves.

Sale is not a reason to end a housing tenancy early. Plan the sale around the lease, not around getting the tenant out.

What happens to the lease when you sell

It depends on whether the lease is registered in the Property Registry.

• Registered lease: the buyer must respect it for its full term.
• Unregistered lease: the buyer must respect it only until the end of the compulsory term. That is the first 5 years, or 7 years if the landlord is a company. After that, the buyer can end it.

If the lease is unregistered and still inside the compulsory term, the buyer can end it. The tenant may then stay for up to 3 months and may claim damages from you as seller. Check the lease dates and the registry before you set a price or promise anything.

The tenant's right to buy first

A tenant under a housing lease has a right of first refusal (tanteo). Before you sell, send the tenant a verifiable notice, usually a burofax or a notarial notice. It must give your decision to sell, the price and the essential conditions.

The tenant then has 30 calendar days after proper notice to buy on the same terms.

If you sell without notice, or at a lower price or on better terms than you notified, the tenant has a right of retraction (retracto). The tenant can claim the home from the buyer, also within 30 days of being told about the completed sale. Re-notify the tenant if you later agree better terms with a buyer.

The right does not apply when the whole building is sold together, or when several units in the same building are sold jointly by one owner.

A lease can contain a waiver of the right. Whether a waiver is valid can depend on the lease and its term, so have a lawyer read it. The registrar will not register the sale without proof of notice or a valid waiver, so keep your proof.

Ways to get an empty home

You cannot force the tenant out to sell. These are the routes that exist:

• Agreement with the tenant. An early exit, usually with compensation.
• Let the term end. Give proper notice not to renew, 4 months before the end of the compulsory term. Otherwise the contract extends automatically year by year up to the limits, then for 3 years.
• Own-use clause. If the contract expressly includes it, you can recover the home after the first year for your own need, or for a first-degree relative or a former spouse after divorce. You must give 2 months' notice. It is for real own use, not for selling.

The decision, timeline, documents and checklist below help you choose and sequence these.

Marketing the home

Say in the listing that the home is let. Do not promise vacant possession unless the tenancy has ended or the tenant has agreed to leave. Tell buyers whether the lease is registered and when the compulsory term ends.

Some regions and temporary measures protect vulnerable tenants from eviction. Ask a lawyer or your town hall before you rely on any exit route.

Choosing between options

How do you handle a sale when the home is let?

• Sell with the tenant in place: The buyer is happy to take on the lease. A registered lease binds the buyer for its full term; an unregistered one binds the buyer to the end of the compulsory 5 or 7 years.

• Agree an early exit with the tenant: You need the home empty for the buyer. The tenant must agree, and this usually means paying compensation.

• Let the term end and give notice: The compulsory term is close to ending. Give notice at least 4 months before it ends; otherwise the lease extends year by year.

• Use the own-use clause: The contract expressly includes it, the first year has passed, and you or a close relative need the home. It needs 2 months' notice and does not work as a way to sell empty.

Selling is not a reason to end a tenancy, so promise an empty home only when the tenancy has ended or the tenant has agreed to leave. Otherwise sell with the tenant in place.

Timeline and deadlines

• Send the tenant a verifiable notice of your decision to sell, the price and the essential conditions: before you sell to anyone

• The tenant decides whether to buy on the same terms: 30 calendar days from the day after notification

• Give notice under the own-use clause, if the contract has one: at least 2 months before you need the home, and only after the first year

Documents you need

• The signed lease contract, to show its start date, its term and whether it contains a waiver of the tenant's right of first refusal.

• Proof that the lease is registered in the Property Registry, if it is. A registered lease binds the buyer for its full term.

• Proof that you notified the tenant of the price and essential conditions in a verifiable way, by burofax (a tracked registered letter) or through a notary. The registrar will not register the sale without it.

• The tenant's written waiver of the right of first refusal, if the lease contains one. It can replace the notice as proof for the registrar.

Checklist

• Read the lease for a waiver of the tenant's right of first refusal.

• Work out the date the compulsory term (5 years, or 7 if the landlord is a company) ends.

• Check whether the sale is of the whole building or of several units in it together, because the right of first refusal does not apply then.

• Tell buyers in the listing that the home is let and that vacant possession is not promised.

Frequently asked questions

Can I end the tenancy early so I can sell the home empty?

No, wanting to sell is not a reason to end a housing tenancy early. You can agree an exit with the tenant, usually for compensation, or let the term run out and give proper notice.

Can I use the own-use clause to get the home back before selling?

Yes, but only if the contract expressly includes that clause, the first year has passed, and you give 2 months' notice. It covers your own need or that of a first-degree relative or an ex-spouse after divorce, not a sale.

Can the tenant give up the right of first refusal in the lease?

Yes, a lease can include a waiver of that right, and for leases of up to 5 years (7 if the landlord is a company) it is commonly treated as valid. Have a lawyer read the exact wording, because the registrar will want the waiver or proof of notice.