Holtrop S.L.P. blog

Marjolein Koene



This article, written by Daniel Perez Rodriguez, partner of Holtrop S.L.P. Transaction & Business Law,  was originally published in Spanish in "el Periódico de la Energía" on September 8th, 2016.

A history on renewables and bricks

Imagine, dear reader, that you own an empty house that needs reforming, and that I have been relocated in 2007 to work in your city for good. As your house is outdated, you agree to make significant necessary investments to condition the housing in exchange for a commitment on my part to stay in the house for the next 30 years, so that you can amortize your investment. We agree on a rental rate of 700 EUR per month, upgradeable annually according to the Consumer Price Index, which I will have to pay in the first 5 days of each month. And for added security, we notarize the contract and officially register it.

Well, imagine that after three years of living in your house and paying the agreed rent, at the end of 2010 I unilaterally decide that instead of 30 years I reduce the duration of the contract to 25. And a few days later, due to the fact that the housing prices have dropped and because of the economic crisis, I make the decision to only pay you the monthly instalments until September of each year, failing to pay the last three.

On top of that, in 2012, I decide I'll pay 7% less rent each month because the neighbours are very noisy, and therefore I have to buy earplugs to sleep. The following year I choose to set a fixed rental price, eliminating the updating of the rent according to the CPI. And I decide that instead of paying the full rental amount each month, I will pay you a percentage, paying you the rest when I collect the money from several creditors who still owe me.

In 2013, emboldened by the improvements in the contract that I'm achieving, I decide to change the way of calculating the rent according to a method I still have to establish, and in the meantime, I pay you on account. The following year, at last, I fix the method. I decide that I will pay you a variable amount, so that in this way, in the 25 years of rental duration you get a reasonable return, which will be determined by the profitability the banks will give me for a bank deposit of 10 years. That return will be calculated taking investment costs of housing and maintenance costs into account. Not your actual costs, but some estimated costs, assuming you were a "model house owner". And of course, to establish how much the house costed, I cannot consider what you paid, but rather the cost for the builder of the entire complex, i.e., the "housing complex", to situate the houses at a distance of less than 500 meters apart from one another. In your costs I will neither consider autonomous nor local taxes, and from your income I will subtract the aid for housing rehabilitation you received when you did the construction. Of course, I will also subtract all I have paid these years when it comes to the calculation of what I still owe you, but in a manner that the profitability you get seems reasonable to me. Oh, and every six years I will update the rent I pay you. That's it for now.

I almost forgot: If you decide to finalize the rental agreement and you wish to come and "self-consume" your house, you will have to ask permission to the local real estate agency, which may take several months, and you will have to pay me a fee, as a compensation to the rest of the owners who cannot rent  their house to you, because you already live in yours. And it is strictly forbidden to share the "self-consumption" of your home with others, because the damage for other landlords would be even greater.

P.S. This story is based on real facts. Not in the real estate sector, of course, where it is inconceivable that something like this could happen. As soon as the tenant goes too far, he will be evicted and problem solved. These events have happened in the renewables sector. Just substitute the author of these lines by the Ministry of Industry of the Kingdom of Spain and the patient reader by a renewable energy producer.

Unfortunately, to make the whole story worse, it is not only that there is a Ministry or a person acting this way, as in the case of the story that has been told. What is really dramatic is that those responsible for interpreting the rules, i.e., the Courts, have decided that the behaviour of the Ministry is in compliance with the Law and that renewable energy producers have the obligation to support all these unilateral changes that I have been describing, or those that may be imposed in the future, so as that the Ministry can declare that the return obtained by renewables producers is "reasonable".