Commercial Security Deposits in Asturias

Effective 1 January 1995, the Spanish Urban Leases Act (LAU) regulates commercial lease deposits. Upon the celebration of a lease contract for a use other than housing (commercial), a cash deposit equivalent to two months' rent is obligatory. The LAU does not explicitly specify whether VAT should be excluded from the calculation of this mandatory security deposit.

1. National Obligation: The Full 2 Months (Force of the LAU)

Operating firmly under the applicable national jurisdiction invariable throughout Spain, the text of the imperative article 36 (LAU) dictates its collection by the commercial landlord.

Every commercial lease "distinct from housing" (Article 3) imposes:

• Collecting an original deposit (fianza) equivalent to Two (2) Months of Rent in cash (Article 36.1). The LAU does not explicitly specify whether VAT should be excluded from the calculation of this mandatory security deposit.
• Updating the Bond: During the first five years (or seven if the landlord is a legal entity), the fianza is not subject to update. Upon extension, it may be adjusted to reach the current two-month equivalent (Article 36.2).

2. The Asturian Exception (End of Deposit Retention)

While the national LAU provides the framework for security deposits, it delegates the specific management of these funds to regional authorities.

Under Disposición adicional tercera of the LAU, Autonomous Communities have the power to establish the obligation for landlords to deposit the amount of the mandatory cash deposit with the autonomous administration or a designated public entity, without accruing interest, until the extinction of the corresponding contract.

• Regional Registry Status: The specific regulation for the Principality of Asturias regarding the lodging of deposits, such as Decree 48/2010, is a regional matter and is not contained within the national Urban Leases Act provided.
• The national law states that if a regional deposit is required, the administration must return it within one month of lease termination to avoid accruing legal interest.
• In the absence of a regional mandate, the fianza is held between the parties according to the contract and Title IV of the LAU.

3. Bank Guarantees and Additional B2B Operations (Additional Guarantees)

The commercial landlord can impose additional guarantees. By law, commercial leasing is not capped like residential housing regarding extra security.

According to Article 36.5, parties may agree on any type of additional guarantee for the fulfillment of the lessee's obligations, in addition to the mandatory cash fianza. While residential leases are capped at two months of additional guarantee for contracts under 5-7 years, commercial landlords may negotiate and impose requirements such as a bank guarantee ("aval bancario") without this specific statutory ceiling. All extra stipulated security is retained according to the private agreement between the landlord and the tenant.

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