Law 820 of 2003
In order to change the holder of the lease, it is mandatory that both the tenant who is leaving the property and the new tenant who is going to live in the property be present. In addition, the landlord or a person authorized by the landlord must also be present. The purpose of having all the parties present is that the cancellation of the contract by the previous tenant is communicated reliably, while the new tenant is informed of all the rights and obligations specified in the rental contract.
You can and should change the ownership of the rental before the tenant who wants to leave does so, since it is necessary that this is in the act of change of ownership, along with the new tenant and the ownership of the property.
First of all, it is important that you know, before starting the process, that you have to inform the owner of the property of the changes that are going to take place, since you need his approval to be able to carry them out.
Model lease agreement with two tenants
Lessor: is the individual or legal entity (a company or corporation) that owns a property and leases or rents it. Lessee: is the individual or legal entity that decides to rent the property in order to live in it or to carry out his or her professional activity there.
The spouse to whom the use of the rented property has been attributed on a permanent basis or for a term longer than the remaining term of the lease, will become the holder of the lease”.
A joint and several obligor occurs when two or more debtors have the obligation to perform, at 100%, the due performance. Therefore, the creditor may claim from any or all of the joint debtors.
Death of the obligor does not affect the bond. Let us remember that death does not extinguish the debts, and since the bond is accessory, as long as the debt exists, the bond will exist. The bond is extinguished when the debt is extinguished, and because of this principle of all accessory obligations, the death of the debtor does not relieve the surety.
What is a joint tenant
The doubts arise at the time of determining in what way the plural lessees are linked to each other and to the lessor, and this in relation to the exercise of the leasehold right, as well as to the fulfillment of the contractual obligations and responsibilities that in its case are derived. The answer, or part of it, will depend on the regime of joint and several liability to which they are subject.
The most widespread jurisprudential opinion (SSAP of Madrid, of February 15, 1996; Asturias, of February 28, 1994; Lleida, of May 13, 1994; and, of special mention, STS of May 13, 1969) holds that, unless otherwise provided by contract, the position of the plural tenants must be considered as joint and several (art. 1137 CC), so that it can be stated, with an expression that has become popular in case law in the field of leasing, that each joint tenant is a third party of the other or others.
The joint tenants must act jointly and severally towards the lessor. If only one of them intends to waive its right, such act will be legally irrelevant for the lessor if it is not done jointly and with the waiver of the rest of the plural lessees. The valid and effective exercise of the leasehold right requires, in principle, that it be carried out by all the plural lessees. The waiver or termination of the lease, the payment of the rent and amounts due, the demand for conservation works, the rights of preferential acquisition and, in general, any other acts or powers deriving from the exercise of the leasehold right will require for their effectiveness that they be exercised jointly and indivisibly by the set of joint tenants. If this is not the case, the act in question will, in principle, lack effectiveness vis-à-vis the lessor.
Joint and several debtor in a lease
This obviously gives the lessor a greater scope of action than in the case of a single lessee, even if the property is occupied by more persons, a circumstance that should in any case be notified to the lessor prior to the lease and it should be the lessor who makes the decision to oblige all the occupants to sign the contract, or only one of them. Note that in the case of denying the occupation of these third parties the lessor could allege the cause of contractual termination of sublease or unconsented assignment, for introducing in the property to outsiders without the consent or authorization of the lessor.
The answer must be negative, since in the event that the lessor requires them to provide this information upon the news of the abandonment of the property by one of the signatories, the answer, which it is always advisable to do, would be to assume the obligations that were in the contract by the rest of the co-signatories of the lease. That is to say, it is not a question of some occupants pretending to continue with the lease of a person who has decided to give up his lease and pretending to subrogate themselves in the rights of the “holder” of the lease, but of the co-signatories of the lease with rights acquired as a result of his record in the lease.