Your landlord slipped in void clauses: get the money back
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You seek a declaration that the clause is void and the return of what you were overcharged. Letting agency costs and the costs of drawing up the contract fall on the landlord, and any stipulation worsening the tenant's position in a residential tenancy is void and treated as unwritten. The money claim lapses after five years.
You rented a flat for 1,100 euros a month through an agency. Before signing you were asked for 1,331 euros in management fees, two months' deposit and a third month as a guarantee, all in a single transfer. You were told that if you did not pay there were other interested parties. The tenancy runs for three years and the landlord is a private individual. Six months on you learn those fees were not yours to pay and want to know whether you can claim them back without risking the tenancy.
The case, in five lines
- What is brought
- A declaratory action holding void the clauses that conflict with the Urban Leases Act, together with a claim for repayment of the sums wrongly charged, plus interest.
- Before which court
- The Civil section of the Tribunal de Instancia (the first-instance court) where the property lies. Since the amount can be valued, the form of proceedings follows the sum claimed.
- Deadline
- A void clause is void from the outset and treated as unwritten. What runs out is the money claim: five years from when repayment could be demanded.
- Who can bring it
- The tenant of the home and, for whatever he has borne himself, the subtenant. If two tenants signed the contract, both bring the claim.
- Financial risk
- Moderate sums and the cost of litigation make the out-of-court route worth trying first. If you sue and lose, an order for costs is added to what you did not recover.
Letting agency costs fall on the landlord
Article 20.1 of the Urban Leases Act, as amended by Act 12/2023, allows the parties to agree that certain general costs of the building fall on the tenant, provided that agreement is in writing and states the annual amount of those costs as at the date of the contract. And it closes the paragraph with a rule that admits no exception: letting agency costs and the costs of drawing up the contract fall on the landlord.
It makes no difference whether they are called intermediation fees, administration costs, agency commission or the cost of drafting the contract. What matters is what they pay for. If what was charged remunerates the work of letting the flat or drawing up the contract, the law places that cost on the landlord's side, and an agreement shifting it to the tenant does not bind him, even if he signed and paid it without protest.
This wording comes from Act 12/2023 and governs contracts entered into under it. For earlier ones, the Act itself refers to its fourth transitional provision, which is what determines their position. That is why, before making any claim, the first thing checked is the exact date on which the contract you are holding was signed.
What is agreed to the tenant's detriment is treated as unwritten
Article 6 of the Urban Leases Act declares void, and orders to be treated as unwritten, any stipulation that alters, to the detriment of the tenant or subtenant, the rules of the title governing residential tenancies, except where the rule itself expressly allows it. This is not a rule of interpretation, it is a rule of nullity.
The practical consequence is that the tenant's signature does not cure the clause. There is no valid waiver and no consent that saves it, because the rule protects a position rather than a simple contractual balance. Against the argument that you agreed to pay and nobody forced you, the legal answer is that the agreement, in so far as it worsens your position, is treated as unwritten.
The deposit for a home is one month, and the rest is capped
Article 36.1 of the Urban Leases Act makes it compulsory, on entering the contract, to require and provide a cash deposit equal to one month's rent for residential tenancies, and two months' for tenancies for uses other than housing. Whatever you were asked for above that one month is not a deposit in the legal sense, but something else.
That excess falls under paragraph 5, which allows the parties to agree any additional guarantee of the tenant's performance, but sets a limit: in residential tenancies, in contracts of up to five years, or up to seven where the landlord is a legal person, the value of that additional guarantee may not exceed two months' rent.
It is therefore worth separating the three figures that are usually paid together in a single transfer: the statutory one-month deposit, the additional guarantee within its cap, and the management fees, which are neither of those two things. The claim is built on that separation, because each item has its own regime, its own limit and its own moment for repayment.
If the deposit is not returned in time, statutory interest runs
Article 36.4 provides that the balance of the cash deposit to be returned to the tenant at the end of the tenancy accrues statutory interest once a month has passed from the handover of the keys without that return having been made. The period does not run from when the landlord finishes inspecting the flat, but from the handover of the keys.
Hence the handover of keys is documented with a date, a record of the property's condition and meter readings. Paragraph 2 adds that during the first five years of the contract, or the first seven where the landlord is a legal person, the deposit is not subject to updating, so no top-up may be demanded from you when the rent rises either.
Five years to ask for the money back
Article 1964.2 of the Civil Code applies a five-year lapse period to personal actions with no special period, running from the moment performance of the obligation may be demanded. The claim for what you were wrongly charged when the contract was signed is a personal action of that kind, and that is the clock which starts running on the day of payment.
There is no need to wait for the tenancy to end before claiming the management fees: they can be demanded from the moment they were paid. It is worth judging the timing, because a tenant still living in the flat weighs up the relationship with the landlord. That judgement can be made, but with the deadline in view and not indefinitely.
How we run the case, step by step
- 1
Read the contract and separate every item charged
We distinguish the rent, the statutory one-month deposit, the additional guarantee and the management fees, and we check the signing date, because the rule in article 20.1 comes from Act 12/2023 and its reach over earlier contracts is set by a transitional provision.
- 2
Quantify what was overcharged
We add up the management and contract drafting fees, any excess over the cap on the additional guarantee and any item worsening your position under the Act, with the payment receipts and the invoices behind them.
- 3
Formal demand to the landlord and to whoever charged
We send a burofax to the landlord and, if the agency charged you directly, to the agency too, identifying the clause, the provision that renders it void and the exact sum claimed, with a firm deadline for repayment.
- 4
Prior attempt at a settlement
We document the negotiating activity that article 5 of Organic Act 1/2025 requires as a condition of admissibility in civil matters, with a concrete repayment proposal whose subject matter matches what will later be claimed in court.
- 5
Claim for nullity and repayment
We file the claim asking for the clauses to be declared void and for repayment of what was charged, with interest. The amount is quantifiable, so the form of proceedings is set by the sum claimed under the general rules.
- 6
Final settlement of the deposit
When the tenancy ends we document the handover of keys with a date, a record of the property's condition and meter readings, and we claim the deposit balance with statutory interest if a month passes without repayment.
The evidence that decides the case
- The signed tenancy agreement, with the clause shifting the management costs onto the tenant.
- The transfer or receipt of the payment to the agency and the invoice issued, with the item stated on it.
- The receipt for the deposit handed over and any proof of its lodging, showing the amount and the date.
- The messages with the agency in which signing the contract was made conditional on paying the fees.
- The dated key handover document, with the record of the flat's condition and the meter readings.
- The monthly rent receipts, which allow what was paid as rent to be separated from what was paid for other items.
What closes the door
- Signing an addendum declaring that the fees are paid voluntarily. Article 6 treats as unwritten any stipulation that worsens the tenant's position.
- Withholding the last month's rent to set the sums off yourself. It turns the claimant into a debtor and opens the door to an eviction claim for non-payment.
- Confusing the statutory deposit with the additional guarantee and claiming everything back. The Act requires one month to be provided and allows additional guarantees within their cap.
- Waiting for the tenancy to end before claiming the fees. They can be demanded from the moment they were paid, and the five years of article 1964.2 run from then.
- Handing over the keys with no dated document. Without that date there is no telling when the month starts after which the deposit balance accrues statutory interest.
The law that applies
- Art. 20.1 LAU. Allows a written agreement that certain general costs fall on the tenant, stating their annual amount as at the date of the contract, and provides that letting agency costs and the costs of drawing up the contract fall on the landlord. BOE-A-1994-26003
- Art. 6 LAU. Declares void and unwritten any stipulation altering, to the detriment of the tenant or subtenant, the rules of the title governing residential tenancies, except where the rule itself expressly allows it. BOE-A-1994-26003
- Art. 36 LAU. Requires a cash deposit of one month's rent in residential tenancies, caps any additional guarantee at two months in contracts of up to five or seven years, excludes updating during that period, and makes the balance accrue statutory interest if unpaid a month after the keys are handed over. BOE-A-1994-26003
- Art. 1964.2 CC. Applies a five-year lapse period to personal actions with no special period, running from when performance may be demanded, and states that in continuing obligations the period starts each time they are breached. BOE-A-1889-4763
- Art. 249.1.6.º LEC. Sends urban tenancy matters to the ordinary form of civil proceedings, except rent claims, eviction for non-payment or expiry of term, and except where the amount can be valued, in which case the general rules on value decide. BOE-A-2000-323
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Can the agency charge me the fees for letting the flat?
Article 20.1 of the Urban Leases Act, as worded by Act 12/2023, states that letting agency costs and the costs of drawing up the contract fall on the landlord. The Act places that cost on the side of the person letting the home, not on the tenant. For contracts predating that reform, their position is set by the fourth transitional provision of Act 12/2023 itself.
I signed agreeing to pay them. Is the clause still void?
Yes. Article 6 of the Urban Leases Act declares void, and orders to be treated as unwritten, any stipulation altering to the tenant's detriment the rules of the title governing residential tenancies, unless the rule itself allows it. The tenant's signature does not validate what the law treats as unwritten, so the argument that you agreed does not close the claim.
How many months' deposit can I be asked for on a home?
Article 36.1 requires a cash deposit of one month's rent in residential tenancies. Paragraph 5 also allows additional guarantees to be agreed, but in residential tenancies, in contracts of up to five years, or up to seven where the landlord is a legal person, the value of that additional guarantee may not exceed two months' rent.
From when is interest owed if my deposit is not returned?
Article 36.4 provides that the balance of the cash deposit to be returned to the tenant at the end of the tenancy accrues statutory interest once a month has passed from the handover of the keys without repayment having been made. That is why the handover of keys must be dated in writing: it is the event from which that month starts.
How long do I have to claim back what I overpaid?
Five years, under article 1964.2 of the Civil Code, which applies that period to personal actions with no special period, running from when performance may be demanded. The nullity of the clause does not depend on that period, since article 6 treats it as unwritten, but repayment of the money does, which is why waiting until the end of the tenancy is unwise.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.