Separation, a housemate leaving or a tenant's death

Key rules

• Death notice: Tell the landlord in writing within three months of the death, or the lease ends.
• Co-tenant leaving: A housemate leaving does not end the lease for the others, and the leaver stays liable unless the landlord releases them.
• Separation notice: Separation notice: If a court decides on separation, divorce or nullity, the spouse who stays in the home must tell the landlord in writing within two months of being notified of the decision. Attach a copy of the ruling.
• Separated spouse: After the tenant's death, a separated spouse needs another qualifying link, such as two years living together as a partner.

If a co-tenant leaves, the lease does not end for the others

When one of several people on a lease moves out, the lease normally carries on with the rest. Check your contract. Most leases with several tenants make everyone jointly liable for the full rent, so the landlord can claim all of it from any one of you. If yours has that clause, the person who leaves stays liable for the rent and other obligations until the landlord releases them, usually in writing, and you stay liable for the whole rent.

The fianza is one deposit for the whole lease. It is refunded only when the lease ends, not when one person leaves. If you are the one leaving, settle the money with the people staying. You can also ask the landlord for a new lease or an addendum that removes you.

If you separate or divorce

If you are married and the tenant spouse leaves, or a court decrees separation, divorce or nullity, the spouse who stays can continue as tenant. This works if the court gives them the use of the home, or if the spouses agree. The stay lasts for the remaining term and any extension.

The tenant must tell the landlord in writing about the departure or the court decision, with a copy of the ruling. Do this within two months of being notified of the court decision. The landlord can ask for proof.

If you are an unmarried partner, a different rule applies. If the tenant leaves, the partner living in the home can continue, and the landlord must be told. If you are in this situation, get legal advice, because the protection is not as clear as it is for spouses.

If the tenant dies

Some people can take over the lease, but only if they tell the landlord in time. Send written notice within three months of the death. Include:

• a certified copy of the death certificate
• proof of your relationship to the tenant
• your details and the date of death

Use a method that proves delivery, such as burofax. If nobody gives notice, the lease ends three months after the death.

Who can take over

The categories are in order, and an earlier one excludes a later one:

1. A spouse who was not separated, legally or in practice.
2. A partner in a stable relationship like a marriage, who lived with the tenant for at least two years before the death. There is no minimum if they had children together.
3. Descendants.
4. Ascendants.
5. Siblings.
6. Certain relatives up to the third degree who have a disability of at least 65% and lived with the tenant for the two years before. Being over 65 is not enough.

If several people are in the same group, the closer relative goes first. Between equals, the one with a disability or the older one is usually chosen, or they agree among themselves.

If you were separated from the tenant

A separated spouse, legally or in practice, does not count as a spouse for this purpose. A divorced spouse does not either. You can still qualify in another way, for example as a partner who lived with the tenant for two years, or as a descendant. The notice deadline and documents are the same. Whether a separation in practice existed can end up before a court, so keep proof of where you lived.

What to do

Work out which situation you are in, then use the decision, timeline and documents below. Act quickly: both the three-month and two-month deadlines can cost you the home.

Choosing between options

Who keeps the home when the tenant dies, separates or a housemate leaves?

• Take over the lease after a death: You were the tenant's spouse (not separated), a partner who lived with them for two years (no minimum if you had children together), or a descendant, ascendant, sibling or eligible relative who lived with them for two years.

• Stay after a separation or divorce: The court gives you use of the home, or you agree it, and the tenant spouse leaves. You must then notify the landlord, as explained elsewhere on this page, and attach a copy of the ruling.

• Stay on as a co-tenant when another leaves: You are on the lease with others. The lease continues for you. Check your contract: most leases with several tenants make everyone jointly liable for the full rent.

• Let the lease end: Nobody qualifies or wants to take over.

Earlier groups in the list exclude later ones, and a separated spouse does not count as a spouse. A departing co-tenant does not end the lease for the others.

Timeline and deadlines

• Send written notice to the landlord with the death certificate and proof of your relationship: within three months of the tenant's death

Documents you need

• Certified copy of the death certificate, attached to your written notice to the landlord.

• Proof of your relationship to the tenant, such as a marriage certificate, proof of partnership or the family book (libro de familia).

• If you are separated, proof of another qualifying link, such as two years living with the tenant as a partner, or that you are a descendant.

• Written notice to the landlord giving your details and the date of death.

Frequently asked questions

What happens if nobody takes over the lease after the tenant dies?

The lease ends three months after the death. If you want to keep the home, send written notice to the landlord before that point, because without notice the lease ends.

Can I take over the lease if I was separated from the tenant when they died?

Not as a spouse: a legally or de facto separated spouse does not count as a spouse for this purpose. You may still qualify as a partner who lived with the tenant for at least two years, or as a descendant. If you reconciled, you count as a spouse again.

If a housemate on the lease moves out, am I still responsible for the rent?

Probably yes, but check your contract. If it has a joint liability clause, you stay liable for the whole rent. The leaver stays liable too until the landlord releases them, often in writing.

Do I get the deposit back when a co-tenant leaves?

No, not at that point: the fianza stays as one deposit for the whole lease and is refunded when the lease ends. The leaver must settle their share with the others, or you can ask the landlord for a new lease or an addendum.