The current Urban Leasing Law has two articles referring to the so-called couple crisis . Article 12 refers to the withdrawal or non-renewal of the rental contract by the lessee without the consent of the non-renter spouse. Article 15 contemplates the case of the dissolution of the marriage and the attribution of the family home to the non-tenant spouse. Both articles are applicable to any housing rental contract, whatever the date of the celebration (Second Transitory Provision of the Urban Leasing Law).
Both articles refer to spouses, to married couples. Naturally, by constitutional imperative, the rights of unmarried couples are the same as those of married couples. Or not so much. Paragraph 4 of article 12 only recognizes the same rights as the married couple if there has been a coexistence for a minimum period of 2 years, unless there is common descent, in which case the couple is equated in rights to the married woman. Article 15 refers to married couples, although the use of the rented housing can be given to a domestic partner, especially if there are common children under age.
What happens in the case that there is a crime of gender violence against non-tenant women ? The crime of violence against women is regulated in article 153 of the Criminal Code.
In the Law of urban leases there is nothing planned for cases of violence against women
The Organic Law 1/2004, on Integral Protection Measures against Gender Violence, only refers to housing in article 28. Women victims of gender violence have priority to access protected homes and public residences for the elderly. Nothing else.
The decisions that the judge can make
When a woman files a complaint against her partner for a case of gender violence, it can happen:
- In the instruction phase . That the Violence against Women Court issue a restraining order that supposes that the aggressor tenant must leave the rented flat. The same court can issue a restraining order with civil measures that grants the use of the family home to the victim. This measure lasts 30 days and is only maintained if in the same period the complaining wife files a divorce petition. If the couple is not married and there are children in common, a demand can be filed for their guardianship and custody with attribution of the use of the marital floor.
- In judgment . The Criminal Court convicts the aggressor and issues a restraining order. He can not continue the cohabitation in the apartment that the aggressor has rented as sole tenant. There is no restraining order without conviction to the aggressor, since it is an accessory penalty. The sentence can not attribute the use of housing to the victim.
If a restraining order is issued with the civil measure granting the use of housing to the woman, article 15 would apply. The contract can continue with the non-tenant woman, who will become the same if she communicates her intention to the landlord according to is established Article 15 of the Urban Leasing Law will also apply if it is a de facto relationship.
It is necessary to legislate what happens with the housing rental contract in cases of violence against women
The question is that the measure lasts only 30 days if the divorce claim is not filed, what happens after these 30 days? Since the woman is no longer responsible for the use of housing, will she be a squatter? Can the landlord not accept the payment of the rent by the victim? Should we make a new rental contract? Is it a transfer of contract or a change of ownership? What if the couple is not married? Many questions without answer.
In the cases of restraining orders in the training phase, without civil measures of attribution of use of the dwelling, or in a sentence, which article is applicable? Article 12 of the Urban Leasing Law only contemplates the withdrawal or will of non-renewal of the rental contract of the single tenant spouse and their simple abandonment of the dwelling without another manifestation. Article 15 is based on the judicial decision of attribution of use of housing.
Consult with an expert lawyer in the housing rental contract
My opinion is that we must apply Article 12 of the Urban Leasing Law by analogy. Although there is no manifestation of will or action of the tenant, the situation is similar. I believe that the meaning of the law is not enforced if the assumptions of article 12 are equated – that the tenant desists or does not extend the rental contract without the knowledge or consent of his partner – with the obligation of the aggressor tenant man not to approach and communicate with your partner, which entails leaving the family floor (unless the victim leaves), so that the woman is the tenant.
However, the situation is more complex. The order issued by a Court of Violence against Women, which is an Auto, can be appealed before the Provincial Court. If it revokes the restraining order and it is without effect, what would be the situation in the rental agreement then? For legal security and justice should regulate the rights of women victims of sexist violence on the rented housing of which is not a tenant.