Knowledge

Requalification: when your temporada contract turns out to be a residential tenancy

The heading on a contract decides nothing. What counts is whether the stay is genuinely temporary and whether the file shows it — otherwise the tenant gets the protection of a residential tenancy, with years of term instead of months.

A seasonal letting and a residential tenancy look almost identical on paper. Legally they are worlds apart: the first ends on the agreed day, the second gives the tenant a mandatory right of extension running into years. Which of the two you have drawn up is decided not by the heading but by the reality of the stay.

The label does not count, the reason does

The act does not place seasonal letting in a category of its own but in the residual one: letting for use other than as a dwelling. That is a negative definition. It does not say "a contract called temporada"; it says the property must not serve the tenant’s permanent housing need. Whether that is so appears from facts — not from what the parties wrote down.

What a court looks at

• Whether the tenant demonstrably keeps their main residence elsewhere, and whether the file holds a dated document proving it.
• Whether there is a concrete, named reason for the temporary stay — a season, a course of study, an assignment, building work — and not merely the word "temporary".
• Whether the term fits that reason. An eleven-month contract called "seasonal" without any season to point to does not explain itself.
• Whether the same tenant has been renewed time after time. A run of short contracts one after another points to a lasting housing situation, whatever the individual documents are called.
• Whether the centre of the tenant’s life has moved along: municipal registration, the children’s school, work in the area.

What collapses when it tips over

• The term. The tenant gets the mandatory extension of art. 9.1 LAU: up to five years where the landlord is a natural person, up to seven where the landlord is a legal person.
• The reservation for own use. If the owner ever wants the property back for themselves or close family, the art. 9.3 LAU clause must be in the contract at signing. It cannot be added afterwards.
• Payment in advance. In a residential tenancy a clause demanding more than one month’s rent in advance is void (art. 17.2 LAU) — whereas a seasonal contract often has the whole period paid up front.
• The deposit. Two months is the statutory fianza for use other than as a dwelling; for a residential tenancy it is one month (art. 36.1 LAU). The excess is then no longer a fianza but an additional guarantee, with limits of its own (art. 36.5).

What an office can put on record

The difference between a contract that holds and one that tips over rarely lies in the wording and almost always in the file. Whoever signs for an owner carries that file: if a dispute arises later, it is your document that has to explain why this stay was temporary. That is an argument for gathering the evidence at signing rather than when it is needed.

• Dated proof that the tenant keeps their main residence elsewhere — an empadronamiento or an equivalent document from their own country.
• The reason for the temporary nature, named and backed by a document — not as a boilerplate sentence but as the fact it is.
• Start and end dates that match that reason, and no automatic or tacit renewal.
• Any extension in writing and with a fresh reason. Extending without a new reason is the most common way a file turns into a residential tenancy after all.