Real estate employment lawyer: manage your company's human resources with confidence

Real estate sector: the complexity of heterogeneous workforces

Real estate companies have a particular employment complexity that makes them especially challenging: the coexistence of workers with very different profiles within a single organisation. The developer’s administrative staff, site technicians, commercial agents — some employed and some self-employed — asset maintenance personnel, and group executives form a heterogeneous workforce where each category may have a different collective agreement and specific employment conditions.

At BMC we advise developers, estate agencies, asset management companies, and property managers on the employment management of this complexity. We know the sector’s collective agreements, the Labour Inspectorate’s criteria for classifying real estate agents, and the employment tribunal case law on the most frequent sector disputes.

Real estate agents: the boundary between self-employment and employment

The classification of real estate agents as self-employed or as employees is one of the most contentious areas in the sector. Companies that work with formally self-employed agents but in practice impose working hours, targets, tools, and restrictions characteristic of an employment relationship are assuming the risk that the Labour Inspectorate will find a concealed employment relationship — with the consequences of retrospective Social Security contributions and benefit surcharges.

We analyse the actual service conditions of each agent or collaborator and recommend the correct contractual structure in light of their real situation.

Market cycles and workforce management

The real estate sector has pronounced cycles that require adapting the workforce to activity volume. In rising markets, the company expands its commercial network rapidly; in falling markets, it needs to reduce it efficiently. Managing this flexibility within the employment framework — ERTE on productive grounds, termination of agency contracts, objective dismissals — requires knowing the cost of each option and structuring the arrangements from the outset so that adjustment is possible without costly surprises.

Commissions: the most frequent battleground

Commission disputes are one of the most frequent causes of employment litigation in the real estate sector. An agent who closed a transaction whose effects materialise after their departure, a worker whose contract sets ambiguous commission accrual conditions, or a self-employed agent whose agency agreement does not clearly regulate commissions on early termination are all situations that generate expensive disputes. Precise drafting of contracts and commission policies from the outset is the best prevention.

The 2022 labour reform impact on the real estate sector

The 2022 labour reform (RDL 32/2021) introduced specific changes that affect real estate companies significantly. The abolition of the general fixed-term contract (contrato por obra o servicio) limits temporary hiring to production-circumstances contracts (maximum 90 days per year, now reduced to 60) or fixed-discontinuous arrangements.

For developers and construction managers with cyclical project workflows, this means that temporarily expanded commercial teams during project launches can no longer be structured on the previous open-ended fixed-term basis. Fixed-discontinuous contracts for recurring sales campaign cycles — used by established developers with annual product-launch programmes — are now the principal tool for managing the commercial workforce seasonally without collective redundancy procedures.

The reform also strengthened the subrogation rules under Article 44 of the Workers’ Statute. Real estate companies that outsource property management, building maintenance, or security to external contractors must now more carefully assess whether a contractor change triggers TUPE-equivalent subrogation of the contractor’s workforce — an increasingly litigated area in property management and facilities services.

Labour Inspectorate priorities in the real estate sector

The ITSS has specific inspection priorities in the real estate sector that estate agents, developers, and property managers should understand:

Self-employed agent reclassification. The ITSS actively investigates commercial agent relationships in property sectors where agents operate under exclusivity, fixed hours, or using company systems in a pattern consistent with employment. An inspection finding of concealed employment generates: Social Security contributions for all periods of concealed employment (with 4-year statute), IRPF withholding obligations, and Social Security benefit surcharges of 30-50% on any benefits the worker received during the period.

Working time recording. Since 2019, all employers must record daily working hours including start and finish times. Estate agencies and property management companies with part-time employees or flexible working arrangements — common in the sector — must have a system that captures actual hours worked. The ITSS cross-references declared part-time hours against Social Security contributions to identify undeclared full-time workers disguised as part-time.

Equality plan compliance. Real estate companies with 50 or more employees must have a negotiated equality plan registered with the relevant labour authority. The sector’s skewed occupational profile — female administrative and interior design roles alongside male commercial and management roles — makes the pay gap analysis in the equality plan a compliance challenge. BMC prepares and files equality plans for real estate sector clients.

Commission structures: designing for compliance and retention

Commission structures in the real estate sector carry both employment and tax compliance dimensions. From an employment perspective, commissions must be clearly defined in the employment contract or in a commission policy incorporated by reference — the CGPJ (General Council of the Judiciary) has consistently held that commission plans form part of the salary if they are applied habitually and systematically.

Key drafting points for real estate commission structures:

• Accrual trigger: When does the commission accrue — at exchange of contracts, at completion, at funds received? The later the trigger, the more post-employment disputes arise.
• Calculation base: Net price excluding VAT? Gross price? Including extras and modifications on new-build?
• Team commissions: How are commissions allocated between the originating agent and the managing agent on a shared instruction?
• Clawback: Under what conditions, if any, does the commission need to be returned — deal collapse, client default, fraud?

BMC drafts commission policies for real estate companies that are clear, compliant with Spanish employment law, and designed to minimise post-departure disputes.

Seasonal and project workforce management for property developers

Property developers face a recurring workforce management challenge: the commercial team needs to scale with the project sales programme, and the project managers and site supervisors expand and contract with the construction timeline. The post-2022 reform options for managing this cycle are:

Production-circumstances contracts for genuinely temporary peaks in commercial or administrative activity (maximum 60 days per year from 2024). These are appropriate for marketing event staffing, project launch periods, and covering temporary activity increases.

Fixed-discontinuous contracts for recurring annual cycles — developers who launch a project annually and need to staff a sales office and commercial team for each launch can use the fixed-discontinuous model to maintain an employment relationship with skilled staff between campaigns without fixed wage costs during the inactive period. Workers accumulate seniority and maintain Social Security protection throughout.

ERTE on productive grounds for significant activity reductions — developers facing a market downturn or construction delay can use ERTE to temporarily reduce hours or suspend contracts rather than proceeding to a collective redundancy. The ERTE preserves the workforce for the recovery. BMC manages ERTE procedures for real estate clients with the speed the market requires.

Social Security compliance in the real estate sector

Real estate companies with workers across multiple employment categories — direct employees, self-employed collaborators, and temporary agency workers — face a layered Social Security compliance environment.

Direct employees must be registered in the General Social Security Regime (Régimen General) from the day before their first working day. Social Security contributions are calculated on the contribution base (base de cotización), which from 2023 includes all salary components including the monetary value of benefits in kind above certain thresholds. For commercial agents earning high variable commissions, correctly computing the contribution base — including variable pay in the month it accrues — is a frequent error source.

Self-employed contractors (autónomos) are responsible for their own Social Security contributions under the Special Regime for Self-Employed Workers (RETA). Since January 2023, RETA contributions are based on declared net income rather than a freely chosen contribution base, which changes the planning calculus for high-earning self-employed agents. Real estate companies that pay significant fees to self-employed collaborators have reporting obligations (Modelo 347, Modelo 190) even though they do not bear the Social Security cost directly.

Minimum contribution requirements for part-time workers — common in administration and office support roles — require specific attention: the contribution base for part-time workers is proportionate to hours worked, but the worker’s benefit rights (unemployment, pension) are also proportionate. BMC advises on the contribution structure for each worker category and manages Social Security registrations and variations.

Dismissal of real estate professionals: particular challenges

Dismissal of employed real estate agents and property professionals raises issues specific to the sector:

Variable pay and compensation calculations. Dismissal compensation is calculated on the total remuneration, including variable pay — commissions, bonuses, and incentives — not just fixed salary. Calculating the average variable pay over the relevant reference period (typically the last 12 months, or the entire employment if shorter) is a specific compliance step for each dismissal. Errors in the compensation calculation expose the company to judicial correction in the dismissal proceedings.

Non-compete obligations post-dismissal. Real estate professionals who leave with knowledge of client relationships, pricing strategies, and commercial opportunities represent a real competitive risk. Non-compete clauses are enforceable under Spanish law only if: they are for a maximum of six months (two years for technical staff), the worker receives adequate compensation for the restriction (not less than 50% of their salary during the restriction period), and there is a genuine commercial interest to protect. BMC drafts non-compete and non-solicitation clauses for real estate clients and advises on enforcement.

Commission claims by departing agents. Agents whose employment terminates before the completion of transactions they originated frequently claim commissions on completed transactions as part of their final settlement. Establishing clear commission accrual and payment clauses in the original employment contract is the most effective way to manage this risk. Where the contract is silent, the courts generally apply the principle that the commission accrues when the transaction completes, not when it is originated.