Carlos Baos: Prohibition of tourist rental

Three years ago, a long-awaited modification of the Horizontal Property Law passed. It introduced the possibility of prohibiting tourist rentals, which had been causing so many problems in recent years in community owners. At the time we discussed this issue and the possibilities of the reform. However, the passage of time has shown that it had several problems of origin that have complicated its implementation. In today’s article, we analyse the latest developments in this matter and explain the key elements that should be considered when dealing with this matter.

The best place to start is the specific wording that the legislator gave to art. 17.12. It establishes that communities may limit or condition tourist rentals. The majority required to approve the agreement is 3/5 of the owners representing 3/5 of the quotas. However, it is important to underline that at no point is the term prohibit used. This detail is of particular importance.

It is obvious that neighbours have the right to rest and not be disturbed in their homes. However, it cannot be overlooked that private property and freedom of enterprise are rights recognised in the Spanish Constitution. Therefore, a pre-emptive prohibition on such rentals might therefore be a bit excessive, no matter how annoying some of them might be (loud music, disturbing noises, uncivilised behaviour, etc.)

This is precisely the position that has recently expressed a Court of First Instance in Spain. In its ruling it criticises the legislator for such an ambiguous wording in the law and declares null and void an agreement that prohibited tourist rentals even though it had been approved in accordance with the majority indicated in the law (3/5 of quotas and votes). According to the judge, the law does not protect prohibition, but only limitation or conditioning. And for this reason, the judge believes the majority required would be unanimity. Some Land Registers have expressed similar concerns refusing the registration of the agreements on the same grounds: the law does not protect the prohibition. For that reason, they refuse to register them.

It is foreseeable that this matter ends up before the Supreme Court, probably in several years’ time. Until then, the ambiguity, discussions and differing interpretations about this matter will continue.

If this issue is being discussed in your community of owners, we advise you to act with caution. For expert legal advice about this, contact our law firm, and visit our website:

https://www.white-baos.com

The information provided in this article is not intended to be legal advice, it simply transmits information related to legal issues.

You may be interested in the following articles / services:

Problems with property rented to tourist in community of owners. Legal possibility of prohibiting the tourist rental or increase the community fees.

Tourist rental in Valencian Community. Rules. Documents. Advice.

Tourist rent in the Valencia Community (Alicante, Valencia and Castellon). Tourist letting management companies. 

Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185

E-mail: info@white-baos.com

White & Baos 2022 – All Rights Reserved.

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