The commercial lease has expired, nobody gave notice and the tenant is still paying: has it been renewed?

Yes, but not for the same term. If the tenant stays on in the premises for fifteen days after the end with the landlord's consent and without anyone having asked the tenant to leave, the law treats this as tacit renewal (“tácita reconducción”), which is a new contract on the same terms except for its duration. With a monthly rent, the new contract runs from month to month and either party can end it by giving notice for the end of the month. In addition, the guarantor or the bank that guaranteed the lease is no longer liable for anything owed from then on, unless the guarantee states that it also covers this situation.

Alburquerque Abogados

José Manuel Alburquerque
Landlord and tenant

How long the new contract lasts

It depends on how the rent was set:

  • If it was set by the month, the contract continues from month to month.
  • If it was set by the year, it continues from year to year.
  • If the lease set an annual rent payable monthly, the duration is open to argument.

Everything else stays the same, such as the rent, the expenses or the permitted activity. Tacit renewal must not be confused with an extension already provided for in the lease, for example in a clause stating that it will be extended year by year unless notice is given. In that case the same lease continues, with any guarantees that were also given for the extensions.

Third-party guarantees come to an end

This is the most important point for the landlord. With tacit renewal, guarantees given by another person to secure the lease, such as a bank guarantee or a personal guarantor, cease to apply, unless the guarantee expressly states that it also covers this situation. They still cover what was owed up to the end of the lease, but not anything owed afterwards. The tenant's own guarantees, such as the statutory deposit (“fianza”), continue.

For the tenant the risk is the opposite. With a month-to-month contract, the landlord can ask for the premises back at very short notice.

How to avoid it

  • A landlord who wants to recover the premises must ask in writing for them to be returned before the lease ends or within the following fifteen days, by “burofax”, a certified letter with proof of content, or by another means that leaves a record.
  • If the landlord then continues to collect payments, it is advisable to state in writing that they are compensation for occupation and not rent.
  • If both parties want to continue, the best course is to sign an extension or a new lease, with its own term and with renewed guarantees.

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.