Commercial Maintenance Obligations in the Basque Country

Maintenance and repair obligations in commercial leases (uso distinto del de vivienda) in the Basque Country are defined by the Freedom of Contract. Unlike residential leases, where Article 21 of the LAU protects the tenant, commercial landlords can legally shift most maintenance and building costs to the tenant company.

1. Allocation of Repair Duties: Structure vs. Content

In the absence of a detailed clause, Spanish courts usually follow this division:

• Landlord (Structural/Essential): Responsible for the roof, main walls, slab, and essential building installations (plumbing and electrical risers).
• Tenant (Business/Wear and Tear): Responsible for the HVAC system, internal lighting, shopfronts, and any damage caused by the specific commercial activity.
• The "Full Subrogation" Clause: Many Basque commercial leases include a clause stating the tenant is responsible for ALL maintenance, including structural ones, to create a "Net Lease" for the investor.

2. Tenant Works and "Fit-Out" Adaptation

Since commercial premises are often delivered "en bruto" (shell condition), the lease must regulate the adaptation works:

• Prior Consent: The tenant must obtain written consent from the landlord before starting any structural or layout changes.
• Licensing: It is the tenant's duty to obtain the "Licencia de Obra" and the "Licencia de Actividad" from the local Ayuntamiento (Bilbao, Vitoria, etc.).
• Reversion or Retention: The contract should specify if the landlord will keep the improvements at the end of the lease for free, or if the tenant must remove them and restore the property to its original state (Rehabilitación).

3. Building Inspections and Compliance (ITE)

The Basque Country has a strict Technical Building Inspection (ITE) regime.

• Mandatory Compliance: Buildings over 50 years old must pass an inspection every 10 years.
• Costs of Remediation: If the ITE detects structural issues, the landlord is usually responsible for the cost unless the contract has a specific "Triple Net" or subrogation clause for building levies (derramas).
• Notification: Landlords must disclose any pending ITE works to commercial tenants, as these works could disrupt business operations.

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