The boom of holiday tourist rentals in Spain has led to the adoption of autonomous and municipal regulations that impose administrative obligations to limit this activity in our country. With the same purpose, many owners’ associations have used their prerogatives to revise their statutes, adopt internal regulations or sue the owners of holiday tourist rentals.
The regulation of holiday tourist rentals in Spain
The organisation and distribution of powers provided for in the Spanish Constitution do not establish a unique legal regulation on holiday tourist rentals, but nineteen. This activity is the responsibility of the Autonomous Communities and, for Ceuta and Melilla, the Autonomous Cities, which impose administrative obligations.
For example, Decree 28/2016, of 2 February, on holiday rental houses, amending Decree 194/2010, of 20 April, on holiday rental establishments in Andalusia, according to which those interested in starting a holiday tourist rental activity must first submit a declaration of responsibility to the competent Regional Ministry of Housing, which will then register them in the Andalusian Tourism Register.
In addition, local authorities have introduced their regulations and, sometimes, actual restrictions that can amount to bans.
In Barcelona, for example, the city council has adopted an urban planning regulation, the Pla especial urbanístic per a la regulació dels establiments d’allotjament turístic, albergs de joventut, habitatges d’ús turístic, llars compartides i residències col-lectives docents d’allotjament temporal a Barcelona, which divides the municipality into several zones. Depending on where the property is located, new establishments for tourist use may or may not be operated.
Given the diversity of regulations on the subject, it is necessary to consult the local laws at the regional and municipal levels before starting holiday tourist rental activities.
The limitation of holiday tourist rentals by the owners’ associations
The Horizontal Property Law (LPH) empowers communities of owners to restrict the establishment of tourist accommodations. This power is limited and must comply with the law to avoid violating the property rights of those involved.
The twelfth paragraph of Article 17 of the Horizontal Property Act expressly allows the general assembly to adopt, by a majority of three-fifths of the total number of owners representing three-fifths of the total number of participation quotas, resolutions limiting or imposing conditions on the exercise of holiday tourist rental activities in horizontal property regimes. It also empowers the Board to establish special expenditure quotas or an increase in the share of common expenses of the apartment hosting such activity, as long as these modifications do not imply an increase higher than 20%. %. Following a principle of rigour, the above agreements will not be retroactive and must be registered with the Land Registry to be enforceable against third parties.
Besides adopting agreements, some municipalities have resorted to injunctions. This procedure allows challenging the existence of holiday tourist rentals based on Article 7 of the LPH, which, as a general rule, prohibits noxious, unhealthy, dangerous or illegal activities. The complainant must prove the fulfilment of the conditions laid down by the LPH to stop the activity. Established case law has determined that tourist rental or leasing doesn’t inherently violate Article 7 of the LPH, but it is necessary to prove the existence of adverse conditions resulting from such activity.
For example, case law acknowledges that engaging in activities that violate Article 7 of the LPH cannot be justified solely by occasional episodes of disturbance to neighbours, mainly when those incidents occur in properties not intended for tourist use (see, for example, the Judgment of the Provincial Court of Madrid of 12 July 2021).
Lauriane Moreira
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