Renting a property involves a number of initial expenses that can raise questions. The issue of who pays the real estate agency fees in a rental has changed significantly in Spain since 2023. The approval of Law 12/2023, on the right to housing, amended the Urban Leases Act and established a new allocation of costs in primary residence contracts. Understanding what the regulation states and how it is applied in practice is key to avoiding improper payments.
What Are Real Estate Agency Fees in a Rental?
Real estate agency fees are the financial compensation received by the agency for mediating the lease of a property. This does not only involve publishing a listing, but a set of professional services aimed at formalizing the contract with legal guarantees.
The most common services include:
- Marketing the property on specialized portals.
- Managing viewings and coordinating schedules.
- Screening and assessing the financial solvency of candidates.
- Drafting the contract in accordance with the Urban Leases Act.
- Managing the security deposit with the corresponding regional authority.
The usual amount of these fees is equivalent to one month’s rent plus VAT (21%), although it may also be set as a percentage of the annual rent, generally between 8% and 12%. There is no legally regulated tariff, as the principle of free competition applies.
From a tax perspective, these services are subject to VAT under Spanish Tax Agency regulations. In addition, for the landlord they constitute a deductible expense in Personal Income Tax (IRPF) as part of real estate capital income.
It is important to distinguish between intermediation fees and additional optional services. Only services that are effectively contracted may be invoiced, and their allocation will depend on the type of rental agreement.
Who Pays the Real Estate Agency Fees Under Current Law?
The answer is clear in the case of primary residence. Since the entry into force of Law 12/2023, real estate management and contract formalization costs must be borne by the landlord.
Article 20.1 of the Urban Leases Act, following its amendment, establishes that real estate management expenses and contract formalization costs shall be paid by the landlord.
This rule is mandatory. This means that it cannot be agreed otherwise in primary residence contracts. Any clause imposing these costs on the tenant is null and void.
The obligation applies to individuals, legal entities and large property holders. In all cases, if the contract is for a primary residence, the landlord pays.
In areas declared as “stressed housing markets” by the autonomous communities, administrative oversight is stricter. Non-compliance may result in penalties under the regime established in the Housing Law.
Additionally, the landlord may deduct these expenses in their Personal Income Tax return, reinforcing the principle that the cost forms part of their activity as a lessor.
Real Estate Fees in Temporary Rentals: How It Works
The situation changes when we talk about temporary rentals. Leases for use other than housing, regulated in Article 3 of the Urban Leases Act, are not subject to the same protections as primary residence rentals.
A seasonal rental must respond to a temporary need, such as studies, a temporary job relocation, or medical treatment. In these cases, the principle of freedom of contract under the Civil Code applies, allowing the parties to agree on who pays the fees.
In practice, in temporary contracts it is common for the tenant to assume the commission. However, the temporary nature must be justified and documented. If a seasonal contract is used to conceal a primary residence, it could be considered fraud.
If you are considering renting an apartment in Madrid for professional or academic reasons for a specific period, it is advisable to carefully review the type of contract before assuming any commission.
Since 2025, several autonomous communities have strengthened oversight of short-term rentals through registration systems. The objective is to prevent improper use of this modality to circumvent primary residence regulations.
Differences Between Primary Residence Rental and Guaranteed Rental
The term “guaranteed rental” can be confusing. It is not a distinct type of contract under the Urban Leases Act, but rather a management model or additional guarantee for the landlord.
In a traditional primary residence rental, the landlord pays the initial fees and may take out a rent default insurance policy regulated by Law 50/1980. The tenant only pays rent, utilities, and legal guarantees such as the security deposit.
In a guaranteed management model, the company manages the property throughout the term of the contract and guarantees rent collection. In exchange, the landlord pays an additional monthly fee.
Problems arise when attempts are made to pass on mandatory costs to the tenant under labels such as administrative services or tenant assistance. If the service is mandatory to access a primary residence, charging it to the tenant is illegal.
In recent years, the Ministry of Consumer Affairs has initiated sanctioning proceedings for practices that concealed fees under other concepts. Only voluntary services expressly contracted by the tenant may be invoiced.
Can Real Estate Agency Fees Be Negotiated?
Yes, but it depends on the type of contract. The landlord has room to negotiate the commission with the agency, since they bear the cost in primary residence rentals.
There is no legal maximum tariff. Agencies compete with one another, allowing agreements on reductions for exclusivity, success-based fees, or fixed rates.
In a primary residence rental, the tenant does not have to negotiate anything because they are not responsible for payment.
In temporary rentals, negotiation may be possible, especially if advance payment or a bank guarantee is offered. It is advisable that any agreement be recorded in writing in the agency engagement document.
Practical Cases: Who Pays the Fees in Each Situation?
Case 1: Apartment for permanent residence.
Primary residence contract for five years.
Result: The landlord pays.
Case 2: Professional relocation for six months.
Justified seasonal contract.
Result: The tenant may pay if agreed.
Case 3: Luxury property over 300 m² or rent exceeding 5.5 times the minimum wage (SMI).
Result: It may be agreed that the tenant pays.
Case 4: Personalized property search service requested by the tenant.
Result: The tenant pays, as they are contracting the service.
Case 5: Contract renewal.
Result: The landlord must pay.
In short, in most primary residence rentals in Spain in 2026, the landlord is the one who pays the real estate agency fees. Only in temporary rentals or services expressly requested by the tenant may this cost be transferred.