Does the necessity clause have to be in the tenancy agreement for the flat to be recovered?
Yes, in agreements signed since 6 March 2019. Under the law, the agreement must state expressly, from the moment it is signed, that the home may be recovered if the landlord needs it. Without that clause, the landlord cannot recover the home during the first five years even if they genuinely need it. There is one exception, because to oppose the extraordinary extension of up to two years a genuine and proven need is enough even if the agreement does not provide for it. Nor is the clause enough on its own, since when the time comes the tenant must be given two months' notice and told the specific reason.
Alburquerque Abogados
José Manuel AlburquerqueWhat the law says
Recovery of the home because the landlord needs it is only possible if, when the agreement was signed, it was stated expressly in it that the landlord might need the home before five years had passed for themselves, their children or their parents to live in, or for their spouse following a final judgment of separation, divorce or annulment. If the agreement does not say so, the landlord must respect the minimum term, even if the need is genuine.
Agreements signed before 6 March 2019 follow the rules of the law in force when they were signed, which in some cases did not require the clause.
The exceptions
- To oppose the extraordinary extension of up to two years that has existed since 8 October 2026, the landlord's need is enough even if the agreement does not contain the clause, provided that the reason is genuine and can be proved.
- For the extension of up to three years in stressed residential market areas (“zonas tensionadas”), areas declared as such because of high rents, the law refers to the time limits and conditions for recovering the home because the landlord needs it, but does not say expressly whether the clause is required. The prudent course is not to assume that the need is enough without it.
- When the five years are up, or seven if the landlord is a legal entity, such as a company, neither the clause nor any need is required, because the landlord can choose not to renew by giving four months' notice.
How to draft it
The clause must state clearly that the landlord may recover the home, once the first year has passed, if they need it as a permanent residence for themselves, for their children or parents or for their spouse in the event of a final judgment of separation, divorce or annulment. The prudent course is to set out those cases as the law describes them. The specific reason is explained later, in the two-month notice. If you are a landlord and an individual, it is advisable always to include it, even if you have no plans to recover the home today. If you are a tenant, check whether your agreement has it.
This answer is provided for educational purposes and offers initial guidance on the question raised. Every matter has its own circumstances and nuances that require individual assessment. For that reason, before taking decisions with significant consequences, it is advisable to consult a professional and not to rely solely on this information. Personalised advice makes it possible to apply these explanations to the specific case and to assess the options available with greater certainty.