How to change tenant? Model of subrogation of the rental contract

A multitude of scenarios can occur during the term of a lease. What happens if the tenants get divorced? What if the lease holder dies?

Well, to deal with these situations, there is the subrogation of the lease. This practice consists of the transfer of the lease to another individual who is not the owner. The rights and obligations agreed in the original lease are thus transferred to a third person.

In today’s blog, we give you all the details on how this model works.

Model of subrogation of the rental contract

According to Article 8.1 of the Urban Leases Law, in order for the lessee to assign the lease of a dwelling, the consent of the lessor will always be necessary.

There are two situations in which such subrogation of the rental contract is possible. From KM2 Real Estate Services we want to detail both so that you know the different scenarios and their protocol of action.

Subrogation of the lease in the event of separation, divorce or annulment of the tenant’s marriage

Article 15 of the Urban Leases Law establishes that, depending on the judicial divorce sentence, the non-tenant spouse may continue in the use of the dwelling.

Specifically, the provisions of Article 15 are as follows:

“In cases of annulment of the marriage, judicial separation or divorce of the lessee, the non-lessee spouse will be able to continue in the use of the rented dwelling when it is attributed to him/her in accordance with the provisions of the applicable civil legislation. The spouse to whom the use of the rented dwelling has been attributed on a permanent basis or for a term longer than the remaining term of the lease, will become the holder of the lease”.

Subrogation of the lease in case of death of the landlord

Article 16 of the Urban Leases Law provides that in the event of the death of the lessee, the lease may be subrogated to the lessee:

• The spouse of the lessee, who was living with him/her at the time of his/her death.

• The person who had cohabited with the tenant on a permanent basis for the two years prior to his death. In the case of having had children, the mere cohabitation is sufficient.

• Siblings, descendants or ascendants of the tenant who have lived with him/her during the last two years.

• Individuals related to the deceased, who had a disability equal to or greater than 65%. They must have lived with the deceased during the two years prior to death.

In the event that there are different relatives entitled to subrogation of the lease, they must reach a unanimous agreement.

If no such agreement is reached, preference will be given to the individual who is most closely related to the deceased. If two individuals are on equal footing, the one with a disability equal to or greater than 65% will have priority, followed by the one with greater family burdens. In last place, the youngest descendant.

Steps to follow for the subrogation of the lease contract

If you find yourself in one of the two situations mentioned above and you wish to subrogate the lease, here are the steps to do so:

• In the case of divorce, if you wish to continue in the lease, you must notify the landlord within 2 months of being notified of the court decision granting you the use of the dwelling.

• In the event of death, whoever wishes to subrogate in the lease, must communicate it within three months after the death. It will be obligatory to attach the death certificate, data and relationship with the deceased.

• Finally, the agreement will be drafted and signed to record in writing the subrogation in the rental contract.

Now that you know in which cases it is possible to apply the rental subrogation model and how it works, at KM2 Real Estate Services we offer you an advisory service in the formalization of lease contracts.

Do not hesitate to contact our real estate consultants, we will be happy to help you.