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It depends on who lived there. The general rule of article 1051, subparagraph d), of the Civil Code is that the lease expires “by the lessee’s death” — but, in the lease for housing, the Article 1106 opens a wide exception: the contract not It expires if the less than the less than a year has survived the lessee, the spouse with residence in the leased, who had lived with him in a de facto union for more than a year, or those who had lived in a common economy with him for more than a year.
if there is transmission, it must be communicated to you in three months (Article 1107). If there is no, it can still only demand the property six months then (article 1053). This is one of the points where the most landlords are wrong — and where the error is expensive, because the answer changes depending on whether the contract is housing or commercial, and depending on whether it was entered into before or after the NRAU.
The essentials in 30 seconds
- at housing, the contract does not expire if a spouse survives, a de facto united person or person in a common economy for more than one year (art. 1106).
- There is no transmission to anyone who has another house, owned or leased, in the same geographic area (art. 1106.º, no. 4).
- The transmission must be communicated to the landlord in 3 months, under penalty of compensation (art. 1107.º).
- Without transmission, the property can only be required 6 months after death (art. 1053).
The general rule: expiry due to death
Article 1051 lists cases of expiry of the lease. subparagraph d) is the one that interests us: the contract expires “for the death of the lessee or, in the case of a legal person, due to the extinction of the latter, Unless written otherwise».
This final caveat is linked to the Article 1059, no. 1: “The contractual position of the lessee is transferable by his death or, in the case of a legal person, for the extinction of the lessee, if he has been agreed in writing.” That is, the parties can, in the contract itself, provide for the transmission.
But, in most cases, it is not this clause that decides. It is the special regime of urban leasing.
Housing: who can succeed in the contract (article 1106)
The Article 1106, no. 1, of the Civil Code It determines that “the lease for housing does not expire on the death of the lessee” when one of the following persons survive:
| Who | Requirement | legal grounds |
|---|---|---|
| Spouse | residing in the leased | Art. 1106, no. 1, a), CC |
| united in fact | lived with the lessee in a de facto union + 1 year | Art. 1106, no. 1, b), CC |
| commoner | lived with the tenant in a common economy + 1 year | Art. 1106, no. 1, c), CC |
If there is more than one candidate
Paragraph 3 fixes the order. The position of lessee is transmitted, on an equal basis of circumstances, successively to the surviving spouse or person who lived in a de facto union with the deceased, then to the relative or affine to the closest or, among them, to the eldest, and finally to the eldest of among the other people who resided in common economy with him.
the exclusion that many landlords are unaware of
Death near the end of the contract
The No. 5 Resolves a limiting case: ‘The death of the lessee within the six months prior to the date of termination of the contract gives the transferee the right to remain in place for a period of not less than six months from the occurrence.’ Even with the contract ending, there is a minimum of six months from the death.
contracts prior to the NRAU: the list is much longer
If the contract is old, it is not article 1106 that commands. The Article 26, no. 2, of Law no. 6/2006 It determines that, for housing contracts concluded under the RAU (Decree-Law no. provided for in articles 57 and 58′. Article 28(1) extends, with the necessary adaptations, to the even older contracts referred to in Article 27.
it’s the Article 57 of the NRAU It protects a much wider universe of people:
| Paragraph | Who survives the primitive tenant | Requirement |
|---|---|---|
| a) | Spouse | residing in the leased |
| b) | united in fact | de facto union for more than 2 years and residency in the leased for more than 1 year |
| c) | 1st degree ascendant | lived with him for over 1 year |
| d) | son or stepson | under 1 year of age, or living longer than 1 year old, or under 26, attending the 11th/12th grade or high school or higher |
| e) | Disabled child or stepdaughter | coexistence greater than 1 year and a proven degree of incapacity equal to or greater than 60% |
| f) | son or stepson aged 65 or over | coexistence of more than 5 years and gross annual income corrected from the aggregate of less than 5 minimum annual remunerations Annual |
The transmission operates in the order of paragraphs (paragraph 2) and is valid here same exclusion from the second house provided for in paragraph 3, in terms identical to those of article 1106, no. 4, of the Civil Code.
Two effects that particularly interest the landlord of an old contract:
- No. 5 — if the position is transmitted to Ascendant with Age under 65 years At the date of death, “the contract is submitted to the NRAU, applying, in the absence of an agreement between the parties, the provisions for contracts with a fixed term, for a period of 2 years”;
- No. 6 — transmitting to a son or stepson under subparagraph d), the contract is subject to the NRAU when he reaches the age of majority or, if he attends the 11th/12th grade or post-secondary or higher education, when he is 26 years old — also with a fixed term of 2 years in the absence of agreement. the case of subparagraph e) is excepted).
Non-Housing: The rule is reversed
Here the logic is exactly the opposite of housing — and it also depends on the age of the contract.
Contracts subject to the Civil Code
Article 1113, no. 1: “The lease does not expire on the death of the lessee, but the successors may waive the transmission, communicating the resignation to the landlord within three months, with a copy of the documents proving the occurrence.” Paragraph 2 orders the application of Article 1107 with the necessary adaptations. The complete framework of these contracts is in the guide of the Commercial lease: deadlines, renewal and reporting.
Old Contracts (Article 58 of the NRAU)
“The lease for non-habitual purposes ends with the death of the primitive tenant, unless there is a successor who for more than three years has been exercising a liberal profession or explores commercial establishment, in the leased, in common with the primitive tenant.» and paragraph 2 demands that this successor communicate to the landlord, “in the three months after the decision, the will to continue the exploitation”.
Note the difference: in a modern commercial contract, the contract to be continued And it is the successors who have to renounce; In an old contract, the contract ends Unless there is a successor who had been exploring the joint business for more than three years.
mandatory three-month communication
The Article 1107 of the Civil Code It imposes the duty to inform: ‘Due to the lessee’s death, the transfer of the lease, or its concentration in the surviving spouse, must be communicated to the landlord, with a copy of the supporting documents and within three months of the occurrence.’
and paragraph 2 has teeth: “The failure to comply with the provisions of the previous number obliges the defaulter to compensate for all damages arising from the omission.” If the tenant’s death was late and suffered losses from it — uncharged rents, communications sent to those who no longer existed, a process initiated unnecessarily — this is the rule to invoke.
Divorce and family home
neighboring situation and equally frequent. If the lease is a family home, the Article 1105 determines that, in the event of a divorce or legal separation of persons and property, the destination of the lease “is decided by agreement of the spouses, who may opt for the transmission or concentration in favor of one of them”. In the absence of an agreement, the Court decides, “taking into account the needs of each one, the interests of the children and other relevant factors” (paragraph 2). the ratified agreement or the judicial decision “are notified of the landlord officially” (n. 3).
deadline table
| Situation | Term | legal grounds |
|---|---|---|
| communicate to the landlord the death transmission | 3 months from the occurrence, with a copy of the supporting documents | Art. 1107, no. 1, CC |
| lack of this communication | obliges the Transmissory to indemnify all damages derived from the omission | Art. 1107, no. 2, CC |
| Waiver of transmission (non-home, CC) | 3 months | Art. 1113, no. 1, CC |
| Willingness to continue exploration (old non-home contracts) | 3 months after the breakdown | Art. 58, no. 2, nrau |
| death in the 6 months prior to the end of the contract | permanence in the leased for a period not less than 6 months counting from the turn | Art. 1106, no. 5, CC |
| If there is no transmission: REFUND OF THE PROPERTY | only payable past 6 months about the verification of the fact | Art. 1053, CC |
Landlord checklist when the tenant dies
- Do not treat the property as a vacant. Even if there is expiry, article 1053 prevents him from demanding a refund before six months on death. Entering the lease on your initiative is never a solution.
- Ask for the death certificate and the documentation that proves the right invoked by those who are in the property.
- Identify the applicable regime by the date of the contract: article 1106 of the Civil Code or article 57 of the NRAU, for housing; Article 1113 of the Civil Code or article 58 of the NRAU, for non-housing purposes.
- Check the exclusion of the second home (art. 1106, no. 4, or article 57, no. 3): Anyone who has another house, owned or leased, in the same geographic area is not entitled to transmission.
- Confirm the time requirements: a year of de facto union or common economy in the Civil Code regime; two years of de facto union and one of residency in the NRAU regime.
- Count the three months of article 1107. and record the date on which the communication arrived — it depends on the compensation of paragraph 2.
- Check if the transmission changes the contract regime (art. 57, paragraphs 5 and 6, of the NRAU) and, if so, prepare the proposal for a new deadline and income update.
- Update the contract registration at AT and reimburse the receipts in the name of the new tenant.
- Ask for legal advice before communicating anything. A communication addressed to the wrong person, or to a single spouse when article 12 of Law No. 6/2006 requires both, is ineffective.
FAQ
Does the contract automatically end when the tenant dies?
not always. The rule of article 1051, subparagraph d), of the Civil Code is the expiry of the lessee’s death, unless a convention is to the contrary. But in the housing lease, article 1106 removes this expiry if a spouse with a residence in the leased person survives, who has in fact united for more than a year or a person in a common economy for more than a year. In the non-hospital lease subject to the Civil Code, article 1113 determines even if the contract does not expire.
My tenant’s partner says he keeps the contract. are you entitled?
If the contract is subject to the Civil Code, article 1106, no. 1, subparagraph b), requires a de facto union for more than a year. In contracts prior to the NRAU, article 57, no. 1, subparagraph b), is more demanding: a de facto union for more than two years and residency in the leased for more than a year. In both cases, there is no transmission if the interested party has another house, owned or rented, in the geographic area defined by law.
How long do I have to wait to recover the property if there is no transmission?
six months. Article 1053 of the Civil Code determines that, in cases of expiry of subparagraphs b) and following of article 1051 — where the death of the lessee is included — the restitution of the building “can only be required after six months on the verification of the fact that determines the expiry”.
Nobody told me the tenant’s death. what can I do?
Article 1107, no. 1, requires the communication within three months of the occurrence, with a copy of the supporting documents. Paragraph 2 establishes that failure to comply with this duty “obligates the defaulting transferee to indemnify for all damages arising from the omission”. Document the damages and seek legal advice.
What if the lease is from a store or an office?
In contracts subject to the Civil Code, article 1113 determines that the lease does not expire due to the death of the lessee, and the successors may resign from the transfer within three months. In the old contracts covered by article 58 of the NRAU, the lease ends with the death of the primitive tenant, unless there is a successor who for more than three years has exercised a liberal profession or explore commercial establishment in the leased joint with him, who must communicate the willingness to continue the exploitation in the three months after the decision.
Does the transfer change the income or term of the contract?
In the Civil Code regime, no: the transferee succeeds in the contract as it is. In old contracts, yes in two cases — Article 57, paragraphs 5 and 6, of the NRAU submits the contract to the NRAU, with a certain term of two years in the absence of agreement, when the transmission operates for an ascendant under 65 years of age or, after the conditions of subparagraph d), for son or stepson.
anticipate: the certain clause and dossier
The death of a tenant is one of the moments when the quality of the original contract is most noted: identified occupants, correct communication addresses, applicable regime of course. Also review the general term of termination of the contract and keep the documentary history in order — it is what prevents a delicate situation from turning into a expensive process. he can generate a lease agreement for free according to the NRAU with all the occupants and well-defined communications, and find more guides in the Aluseg Articles Hub.
This article is for information purposes only and does not constitute legal advice. The applicable regime depends on the date of the contract and the concrete facts of each case. In the face of the death of a tenant, consult a lawyer or solicitor before taking any action.
