Can I sell my apartment if it is leased?– Civil –
Of course, there is no impediment to selling your apartment even if it is leased. Different question is the type of buyer profile that will be interested in acquiring it. Buyers who are looking for a regular home will discard it right away, but those buyers who have investing in mind can approve of it, provided that the lease does not have an excessively long term, and provided it also adjusts to the market value, which would guarantee an immediate return.
But what about the tenants? Do they have some kind of right? The answer is yes, and it is based on the so-called “right of preferential acquisition”, which is regulated in article 25 of the Law of Urban Leases and entails the right of the tenants to acquire the property in the same conditions in which it is transmitted to a third party.
The general rule is that in case of sale of the house the tenant has preferential acquisition right over it, this right being comprehensive of a pre-emption right as well as a right of retraction – the pre-purchase would be pre-empted and the retraction would come afterwards-. With the Urban Leasing Law reform that took place in June 2013, the regulation of this right became dispositive, that is, that landlord and tenant can agree to their resignation. On the other hand, if the contract is of an earlier date, it must be in accordance with the previous regulation, that is, the waiver of this right will only be valid when the duration of the contract exceeds five years.
The conditions in which the lessee can exercise their right are also regulated in article 25 of the Urban Leasing Law. Thus, the pre-emption right may be exercised within a period of thirty calendar days from the day after the landlord irrefutably notifies him of the decision to sell the leased house, the price and other essential conditions of the transfer.
On the other hand, in the event that prior to the sale the lessor has not notified the lessee, or in the case that the requisite requirements have been omitted in said notification, even if the effective price of the sale was lower, or the remaining essential conditions less onerous, the lessee may exercise the right of withdrawal. This right expires after 30 calendar days, counted from the moment the purchaser of the house notifies the tenant of the essential conditions in which the sale was made, be it by delivering a copy of the deed or document in which it was formalized.
Note that in order to register the sale in the Property Registry it must be proven that the tenants have been duly notified, which means the procedure cannot be omitted.
Notwithstanding the foregoing, the Law establishes certain cases in which the lessee does not have this right in his favour -without prejudice to the possible waiver that already appears in the contract-. Thus, there will be no place for this right when the rented home is sold together with the other homes or premises owned by the lessor that are part of the same property or when they are sold jointly by different owners to the same buyer the entire of the floors or premises of the property. This would be the case whenever the sale includes several properties, since in the case that only one dwelling is transferred or in the building there is only one dwelling, the tenant retains his right.