Your holiday property is located in an urbanisation, in a community of owners? Do you want to rent your apartment or holiday home to holidaymakers for holiday purposes? Then you should have it checked whether and to what extent you are allowed to do so according to the declaration of partition (declaración de devisión horizontal) and the resolutions of the owners’ association, for example on the house rules, as there may be considerable restrictions or even complete prohibitions on holiday rentals to holiday guests.
1. What is the problem?
The short-term letting of living space to holiday guests often has a negative image. Especially in larger cities, but also in typical holiday resorts by the sea, a lot of living space is withdrawn from regular permanent letting, which has led to a shortage of housing and rapidly rising rents. Excesses through party tourism and vandalism by young tourists also contribute to the problem.
In mixed-use housing estates, the permanent residents often feel disturbed and harassed by holidaymakers. Communal facilities are subject to increased use and thus also to increased wear and tear. In addition, noise pollution is caused by inconsiderate holidaymakers.
In addition to legal and official prohibitions and restrictions, this can lead to the fact that even within the community of owners of a residential complex or an urbanisation, consideration is being given to whether the use of residential units for renting to holiday guests can be restricted or even prohibited.
Therefore, if you intend to let your holiday apartment or holiday home located in an urbanisation to holiday guests, or if you are considering purchasing a holiday property and financing the acquisition costs through tourist rentals, you should have it thoroughly checked whether this is also possible according to the statutes of the community of owners and the declaration of partition.
2. How can prohibitions and restrictions be regulated?
First of all, prohibitions and restrictions can be regulated horizontally in the declaration of division, the declaración de división. In the case of intended holiday rentals, this document must therefore be checked for corresponding prohibitions and regulations.
It is important to note that any prohibitions and restrictions are only effective against purchasers of holiday apartments and holiday homes if they are recorded in the land register. Here, the protection of good faith in favour of a buyer applies. If there is nothing in the land register, no restrictions and prohibitions apply to him.
Also important: Subsequent amendments to the declaration of partition must be unanimously approved by the community of owners; Article 17(6) LPH (Ley de Propiedad Horizontal). A complete ban on tourist holiday rentals will therefore usually fail due to the fact that unanimity cannot be achieved.
Due to the seriousness of the interference of prohibitions or restrictive regulations concerning holiday rentals, this cannot be done by house rules or similar decisions.
3. What arrangements are therefore possible?
With the introduction of Royal Decree 7/2019, the Spanish legislator amended the Ley de Propiedad Horizontal (LPH) by means of a legislative amendment on 6 March 2019 and added a paragraph 12 to Article 17, for which the term “Anti AirBNB Law” quickly became established.
Under this new regulation, the community of owners has the possibility, by means of a resolution to be adopted by a majority of 3/5 of all owners or co-ownership shares, to regulate and condition the holiday rental, and at the same time to increase the contributions and levies of those owners whose properties are used for holiday rental.
The prevailing view is that a complete ban on holiday rental cannot be achieved by a decision under Article 17(12) LPH.
Only in individual cases would a ban be achieved by the other owners asserting a right to injunctive relief under Article 7(2) LPH if the holiday rental in the individual case proved to be unreasonable for the other residents. This may be the case, for example, if the owner does not comply with the rules and conditions decided by the community.
