Lease assignment (cesion de contrato) in Spain: LAU Article 8 consent rules, subarriendo vs cesion and what happens when a tenant transfers a lease

How a Spanish lease transfers, who must consent, and why the residential and commercial regimes move in opposite directions.

What is a cesion de contrato in Spanish property law?

A cesion de contrato (lease assignment) is the transfer of an entire leasehold from the original tenant (cedente) to a new tenant (cesionario), who steps into the cedente’s position for the remaining term. Under LAU Article 8.1, the residential lease “cannot be ceded by the tenant without the written consent of the landlord”, and on assignment the cesionario “subrogates into the position of the cedente against the landlord”. The original tenant exits the contract; the new tenant inherits every remaining right and obligation. The rule sits in Title II of the Ley de Arrendamientos Urbanos (Ley 29/1994), which governs leases of habitual dwelling, and it is one of the most commonly confused provisions in Spanish tenancy law because it uses the same word, cesion, that applies to a very different commercial regime in Article 32.

The confusion is understandable. A tenant relocating abroad, a couple separating, a business closing its premises, or an estate distributing assets may all involve transferring occupancy to a third party. Each scenario falls under a different LAU article depending on whether the property is a habitual dwelling or a commercial premises, and the consent, rent, and notification rules differ sharply between the two. The LAU tenancy law guide covers the full statute; this page isolates the assignment rules.

How does cesion differ from subarriendo under LAU Article 8?

Cesion and subarriendo are distinct legal acts that both transfer occupancy to a third party, but they differ in who remains liable and how much of the property transfers. Under LAU Article 8.1, a cesion transfers the entire leasehold: the cedente walks away and the cesionario takes over as the sole tenant for the remainder of the term. Under Article 8.2, a subarriendo lets the original tenant stay on as head tenant (arrendatario) while a subtenant (subarrendatario) occupies part of the dwelling under a separate sublease. The head tenant remains liable to the landlord; the subtenant’s rights extinguish when the head tenant’s lease ends.

Three structural differences follow from the statute:

Feature	Cesion (Article 8.1)	Subarriendo (Article 8.2)
Scope	Entire leasehold transferred	Partial occupancy only
Original tenant	Exits the contract (cedente)	Remains as head tenant
New occupant	Becomes the tenant (cesionario)	Becomes a subtenant (subarrendatario)
Consent (residential)	Written landlord consent required	Written landlord consent required
Rent cap	No cap (cesionario pays cedente)	Sublet rent cannot exceed original rent
Liability	Cesionario inherits all obligations	Head tenant stays liable to landlord

The rent cap on subarriendo is explicit: Article 8.2 states that “the price of the sublet may not, in any case, exceed that which corresponds to the lease”. No equivalent cap applies to cesion because the cesionario replaces the cedente at the original rent under the original contract; the cedente and cesionario negotiate their own price for the transfer separately. The subletting (subarriendo) guide covers the sublet pathway in detail.

When does the landlord need to consent to a lease assignment?

For a residential lease (arrendamiento de vivienda, Title II), the landlord’s prior written consent is mandatory under Article 8.1. The statute is categorical: “the contract cannot be ceded by the tenant without the written consent of the landlord”. There is no partial consent, no implied consent, and no statutory obligation on the landlord to give reasons or to act reasonably. If the landlord refuses, the tenant cannot assign. The tenant’s exit route in that case is the early termination right under Article 11, which allows the tenant to walk away after six months with 30 days’ notice, subject to any indemnity the parties agreed in the contract (typically one month’s rent per year remaining).

For a commercial lease (uso distinto de vivienda, Title III), the rule inverts. Under Article 32.1, “when a business or professional activity is carried out on the rented property, the tenant may sublet the property or assign the lease without the consent of the landlord”. The tenant is free to transfer, but two conditions apply: the landlord is entitled to a rent increase (20 per cent for a full assignment under Article 32.2), and the tenant must notify the landlord in writing within one month of the assignment under Article 32.4. The landlord’s consent is replaced by an economic compensation and a notification duty.

The distinction matters because a seasonal lease (contrato de temporada) falls under Title III, not Title II. A tenant renting a property for the summer or a fixed professional posting is not in a habitual dwelling lease, so Article 32 applies, not Article 8. The rental contract types guide explains the boundary between habitual dwelling, temporada, and tourist lets.

What happens if a tenant assigns without consent?

For a residential lease, unauthorised assignment is a ground for termination of full right. LAU Article 27.2.c lets the landlord “resolve the contract of full right” for “the unconsented sublet or assignment”. The landlord can file an eviction action on this basis, and the tenant has no statutory right to cure it retroactively by obtaining consent after the fact. The provision is listed alongside non-payment of rent and damage to the property, signalling the seriousness the legislator attaches to unauthorised transfers of occupancy.

For a commercial lease, the sanction attaches to breach of the notification and rent increase rules in Article 32, not to the transfer itself. LAU Article 35 lets the landlord resolve the commercial lease “for the assignment or sublet of the premises breaching the provisions of Article 32”. Since Article 32.1 allows assignment without consent, the breach that triggers termination is the failure to notify within one month (Article 32.4) or the failure to pay the rent increase (Article 32.2). A commercial tenant who assigns, notifies on time, and pays the 20 per cent increase is fully compliant.

The practical lesson for a residential tenant is that an unconsented assignment carries the same legal weight as not paying rent. A tenant who hands the keys to a friend and leaves the country without written landlord consent has breached Article 8 and exposed the lease to termination, regardless of whether the new occupant pays the rent on time.

Who is liable after a cesion: the original tenant or the assignee?

Under LAU Article 8.1, the cesionario “subrogates into the position of the cedente against the landlord”. Subrogation means the cesionario steps into the cedente’s shoes and inherits every right and obligation under the original lease for its remaining term: the rent amount, the duration, the deposit position, and the duty to maintain the dwelling. The cedente is released from future liability once the assignment takes effect with the landlord’s written consent, because the contract no longer exists for the cedente.

This is the key difference from a subarriendo. In a sublet, the head tenant remains the landlord’s contractual counterparty and stays liable for the rent, the deposit, and the condition of the property even though a subtenant occupies part of it. In a cesion, the head tenant is gone and the cesionario is the sole contractual tenant. A landlord chasing unpaid rent after a cesion pursues the cesionario; a landlord chasing unpaid rent after an unconsented subarriendo pursues the head tenant, who remains on the hook.

For a commercial lease under Article 32, the same subrogation logic applies: the cesionario takes over the commercial lease on its existing terms. The landlord’s economic protection is the 20 per cent rent increase in Article 32.2, not a consent right. Article 32.3 adds that a corporate merger, transformation, or spin-off of the tenant company is “not deemed an assignment” for consent purposes, but the landlord still gets the 20 per cent rent increase.

Does the tenant have a right of first refusal on a lease assignment?

No. The LAU gives a tenant a right of first refusal (derecho de tanteo y retracto) only on the sale of the rented property, not on its lease assignment. Under LAU Article 25.1, “in the event of sale of the rented dwelling, the tenant has a right of preferred acquisition”. The tenant can match a purchase offer within 30 days of notification (tanteo) or claw back the sale within 30 days of the buyer’s notification (retracto), per Article 25.2 and 25.3.

There is no equivalent statutory right for a lease assignment in either direction. The landlord has no right of first refusal over the tenant’s assignment; the tenant has no right of first refusal over a new tenant the landlord might propose. The consent regime in Article 8 is the sole gate: the landlord says yes or no, and if yes, the cedente and cesionario negotiate the transfer price between themselves. If the landlord refuses consent, the tenant’s options are to stay for the remaining term or to terminate early under Article 11.

The absence of a statutory right of first refusal on assignment is a notable gap in the protective framework that Title II builds around residential tenants. The eviction process guide covers how the landlord enforces termination for breach of Article 8.

How do the rules differ for residential and commercial leases?

The LAU splits the consent regime in two by use type. Title II (habitual dwelling) protects the tenant’s stability and the landlord’s control over who lives in the property; Title III (use other than dwelling) prioritises the tenant’s freedom to transfer a business premises. The table below sets out the full comparison:

Feature	Residential (Title II, Art 8)	Commercial (Title III, Art 32)
Consent for assignment	Required, written (Art 8.1)	Not required (Art 32.1)
Consent for sublet	Required, written, partial only (Art 8.2)	Not required (Art 32.1)
Rent increase on transfer	None	20 per cent for full assignment or total sublet; 10 per cent for partial sublet (Art 32.2)
Notification	Not specified in Art 8	Within one month, written (Art 32.4)
Rent cap on sublet	Cannot exceed original (Art 8.2)	No cap (Art 32 silent)
Breach consequence	Termination of full right (Art 27.2.c)	Termination of full right (Art 35)
Corporate restructuring	Not addressed	Not deemed assignment, but rent increase still applies (Art 32.3)

The commercial tenant pays for transfer freedom through the rent increase; the residential tenant pays for consent protection through the risk of refusal. A landlord letting a commercial premises in Spain as a non-resident should build the Article 32 notification and rent increase clauses into the contract from the start.

What are the practical scenarios for a lease assignment?

Five situations commonly trigger a cesion enquiry. In a relocation, a tenant moving abroad for work may want to hand the lease to a replacement tenant rather than pay an early termination indemnity. In a separation or divorce, one spouse may want to transfer the lease to the other; LAU Article 15 already lets a court assign the dwelling use to the non-tenant spouse, so a contractual cesion is unnecessary if a court order is in place. In a business closure, a commercial tenant closing shop may assign the lease to a successor business, paying the 20 per cent rent increase under Article 32.2. In an estate distribution, a deceased tenant’s heir may take over a commercial lease under Article 33 (subrogation by the heir who continues the activity), but a residential heir’s subrogation is governed by Article 16, not by cesion rules. In a corporate restructuring, a tenant company merging with or spinning off into a new entity is protected by Article 32.3, which says the change “is not deemed an assignment” but still triggers the 20 per cent rent increase.

The relocation scenario is where the consent requirement bites hardest. A residential tenant who finds a replacement tenant, agrees a transfer price, and hands over the keys without the landlord’s written consent has not assigned the lease; the tenant has breached Article 8 and the landlord can terminate under Article 27.2.c. The correct process is to obtain written consent first, execute a cesion agreement signed by the landlord, cedente, and cesionario, and register the subrogation so the cesionario’s position is clear against future disputes.

This guide is general information, not legal or tax advice. Rules change and individual circumstances differ. Verify current requirements with an independent lawyer (abogado) or tax advisor (gestor/asesor fiscal) before acting.