The central issue of the judgement is to determine to what extent the owner of a let dwelling or premises can be held liable for damage caused by the tenant to third parties whilst using the property.
The judgement addresses a classic issue in tort law: the distinction between the legal position of the landlord, who retains ownership of the property, and that of the tenant, who holds possession of it and effectively controls its use.
The Provincial Court of Málaga examines the liability that may fall upon the owner of a property when damage occurs whilst it is let to a third party.
The ruling’s underlying principle is that the mere fact of being the owner does not automatically establish liability for damage caused by the tenant.
Once the tenancy agreement has been concluded and possession of the property has been handed over, it is the tenant who normally has effective control over the dwelling or premises and over the activities carried out therein. Therefore, when the damage arises from the tenant’s use of the property, liability must, in principle, be directed against the person who has that effective control.
However, this does not mean that the owner is always exempt from liability. The landlord’s liability may arise when the damage stems from structural defects, faulty installations, a lack of maintenance or repairs for which the landlord was responsible, particularly where the landlord was aware—or ought to have been aware—of the problem and, despite this, failed to take action to resolve it.
The judgement, therefore, distinguishes between two clearly distinct situations:
- Damage arising from the tenant’s use of the property;
- Damage arising from the poor condition of the property or the landlord’s failure to fulfil their maintenance and repair obligations.
This distinction is essential for the correct application of Articles 1902, 1903, 1910, 1554, 1559, 1563 and 1564 of the Civil Code, depending on the specific nature of the damage.
Case law has consistently held that the landlord cannot be required to exercise permanent and constant vigilance over the let property.
In the absence of notification by the tenant regarding the existence of a defect, it must be assumed that the landlord is unaware of the problem and, therefore, cannot automatically be held liable for a negligent omission. This line of reasoning has also been adopted by previous case law of the Provincial Court of Málaga itself.
The problem lies in determining who is liable to the aggrieved third party when damage occurs in a let property.
The difficulty arises because two different parties are involved:
On the one hand, the landlord, who retains ownership of the property but who, through the tenancy agreement, has transferred its possession and use.
On the other hand, the tenant, who is the person actually using the property and has the immediate capacity to control the activities taking place there.
* The legal question, therefore, cannot be resolved simply by stating that the owner is liable because the property belongs to them. It is necessary to determine which specific conduct caused the damage and who had the capacity to prevent it.
The tenant occupies a particularly significant position because they are the one who has actual possession of the property.
Article 1555(2) of the Civil Code stipulates that the tenant must use the leased property with the care of a diligent head of household, using it for the agreed purpose and, in the absence of an agreement, for the purpose arising from the nature of the property.
Furthermore, Article 1563 of the Civil Code establishes a specific liability on the part of the tenant with regard to the loss or deterioration of the leased property, unless they can prove that this occurred through no fault of their own.
Therefore, when the damage results directly from the negligent use of the property, the party who is normally best placed to be held liable is the tenant, as they are the one who has physical control over the property.
This issue is particularly important when the damage arises from conduct taking place within the dwelling or premises over which the landlord has no direct control.
The Court of Appeal draws a clear distinction between being the owner and having effective control of the property.
An owner who has let the property ceases to have immediate possession of it for the duration of the tenancy. Consequently, they cannot generally be required to constantly monitor the tenant’s behaviour.
Case law has rejected the idea that the owner has a kind of permanent duty of vigilance over the property.
In particular, the case law cited in relation to this matter holds that constant supervision of the property is neither legally nor rationally required, especially when the tenant has not informed the owner of the existence of a defect requiring repair.
As a consequence of all this: The landlord is not liable simply because they are the landlord. It is necessary to establish conduct or omission legally attributable to them. Article 1902 of the Civil Code constitutes the general rule of non-contractual liability:
Anyone who, through act or omission, causes harm to another, where fault or negligence is involved, is obliged to make good the harm caused. Therefore, in order for liability to be attributed to the landlord, it is necessary to prove the elements specific to non-contractual liability:
Act or omission – damage – causal link between the conduct and the damage – fault or negligence attributable to the liable party.
Mere ownership does not satisfy these requirements. Consequently, if the damage has been caused exclusively by conduct on the part of the tenant over which the landlord had no control, it is difficult to establish the necessary causal link between the landlord’s conduct and the damage.
But we might ask: when is the landlord liable? The truth is that the landlord’s exclusion from liability is not absolute. The landlord retains certain obligations in respect of the property, particularly regarding maintenance and necessary repairs.
Article 1554(2) of the Civil Code imposes on the landlord the obligation to carry out, during the tenancy, all necessary repairs in order to maintain the let property in a condition fit for its agreed use. Therefore, the landlord may be liable where:
- The property has a defect or is in a state of disrepair;
- That defect is the cause of the damage;
- The landlord is aware of, or ought to be aware of, its existence;
- If the landlord fails to fulfil their obligation to carry out repairs.
Consequently, it is not the same if the damage occurs because the tenant misuses a fixture, as it is if the fixture is defective and the landlord, being aware of the problem, fails to repair it. In the first scenario, liability lies primarily with the tenant. In the second, the landlord may be liable.
The landlord’s knowledge of the situation giving rise to the risk is fundamental; accordingly, the case law cited on this matter has held that the landlord cannot be held liable where the tenant has not notified him of the existence of defects in the property.
“The Provincial Court of Málaga has held that, where no one has informed the landlord of a possible fault or leak and the tenants themselves were also unaware of it, it cannot automatically be presumed that the landlord has failed in their duty to carry out repairs.”
This ties in directly with Article 1559 of the Civil Code, under which the tenant must inform the landlord, as soon as possible, of the need for necessary repairs.
Defect → knowledge → obligation to repair → failure to act → damage → liability.
If any of these elements is missing, holding the landlord liable may be inappropriate.
Another relevant provision is Article 1910 of the Civil Code, which establishes liability for damage caused by objects thrown or falling from a house.
Case law has held that Article 1910 relates to whoever occupies the house or part of it; therefore, when the property is let, liability arising from the ordinary use of the property may fall on the tenant and not automatically on the landlord who does not occupy it.
Damage arising from the use or condition of the property. – This is probably the most important point for understanding the judgment. Damage resulting from the tenant’s activities or conduct is the tenant’s responsibility, whilst damage arising from structural defects in the property, faulty installations or a failure to carry out repairs is the landlord’s responsibility.
Conclusion: The main conclusion of the judgement is that the owner-landlord is not automatically liable for damage caused by the tenant. Liability must be determined on a case-by-case basis, depending on the cause of the damage.
Where the damage arises from the tenant’s use or behaviour, liability lies, in principle, with the tenant, as they are the one who effectively possesses and controls the property.
Conversely, where the damage results from a defect in the property, its fixtures and fittings, or a failure to carry out repairs for which the landlord is responsible, the landlord may be liable under Article 1902 of the Civil Code, particularly where they were aware of the defect and failed to carry out the necessary repairs.
The owner cannot be required to exercise constant supervision over the let property. The landlord is not obliged to constantly inspect the property to uncover potential problems which the tenant themselves has not reported. The case law of the Provincial Court of Málaga emphasises this point.
The application of Article 1910 of the Civil Code must take into account who actually inhabits and controls the property; thus, when the property is let, the liability that falls on the occupier cannot automatically be transferred to the owner who is not in possession.
Finally, the judgement confirms that it is NOT sufficient merely to prove that a person is the owner of the property in order to order them to pay compensation for damage. It must be proven that there was legally attributable conduct or omission, that damage occurred, and that there is a causal link between the two.
In practical terms, to determine whether a landlord is liable for damage caused in a let property, the decisive question would be:
Does the damage stem from the tenant’s behaviour or from the landlord’s failure to fulfil their obligations regarding maintenance and repair?
This distinction lies at the heart of the issue analysed by the Provincial Court of Málaga.
At Belzuz Abogados S.L.P., as a law firm specialising in Insurance Law and Civil Liability, we are available to advise you on the impact of this reform, both from the perspective of insurance practice and in defending the interests of victims and policyholders.