The proliferation of tourist rental apartments in many cities is frustrating communities of owners who are forced to live in their buildings, which may involve tourists using the houses as temporary housing and common areas.

He Supreme Court This week he supported two communities that succeeded in vetoing tourist apartments because their bylaws included a clause prohibiting all economic activity in the buildings.

Addressing this type of provision in bylaws is one way communities can combat this phenomenon. However, this prohibition should already be included in them, since an attempt to introduce it a posteriori requires unanimity between owners.

If a community is considering banning them, it is likely because at least one of the houses is already being used for this activity. And, therefore, there will be some owners who will be against the modification.

This path, which now has the support of the Supreme Court, also means that other professions such as medical consultation, from a dentist or from a law firm. But “very few communities have these legal provisions, and very few can take advantage of them,” explains Peyo Mendia, treasurer of the General Council of Property Managers Associations.

He believes the scope of the two Supreme Court rulings is “limited,” although he believes legal approval may now lead to “many neighbors who are uncomfortable with their ‘tourist’ neighbors turning to their property managers to try to regulate. “

Law of horizontal ownership

Besides the route upheld by the Supreme Court, there is already a simpler formula in the law for local communities to try to stop the spread of tourist housing in their buildings. This is Article 17.12 of the Civil Code. Horizontal property lawwhich presupposes the ability of communities to regulate or limit the existence of this type of housing.

In this case it is required quorum three-fifths of owners re-enable the ban in the charter and expressly states that not retroactive. Possible restrictions agreed upon by the neighbors will apply to those houses that in the future they want to use for rent to tourists. “It was not possible to remove the already registered apartments, but there could not be any more of them,” he clarifies.

Antonio Sudi, a city planning partner at Andersen, clarifies that “laws incorporating this prohibition must be registered in the real estate registry in order for the prohibition to be effective against third parties.”

Of course, this point of the legislation amended in 2019 also gives rise to legal disputes. “There is talk about restriction and regulation, and there are those who say that regulation includes prohibition, and there are those who say no: there is no peace doctrine,” Mendia emphasizes.

Roberto Mangas, legal adviser to the Professional College of Property Managers of Madrid, agrees that “there are dissident opinions” regarding the majority theory that the rule protects the ban. “As each one brings coals to his sardine, [quienes no la comparten] They argue that such provisions are invalid because they violate the right to private property enshrined in Art. 33 of the Spanish Constitution or freedom of enterprise contained in Art. 38 of the same legal text,” he points out.

Economic activity

The Supreme Court ruling states that “the activity of short-term rentals, vacation rentals or tourist apartments is an economic activity and therefore use other than residential“, explains Sudi. “In the case of bylaws of communities of owners that expressly prohibit the use of economic activities, we can understand that the rental of apartments or apartments for such tourist purposes or short stays is not possible,” he adds.

If the laws do not contain such an express prohibition, activities may be carried out subject to compliance with urban planning and tourism sector regulations, which relate to municipal and regional jurisdiction respectively.

For Miguel Angel SotillosPresident of the Spanish Federation of Tourist Accommodation (Fevitur), the Civil Chamber of the Supreme Court decided “whether tourist rentals are an economic activity or not.” Since it concludes that this is the case, the prohibition contained in the bylaws of the appellant owners’ communities does apply to them and the houses can no longer be rented out as tourist properties. “But This does not mean that any building now prohibits it. They must propose a change in the charter and approve it unanimously,” he reminds.

In one of the decisions, the court agreed with the community of owners of the Giraffe Elite building in the city. Oviedo and orders the cessation of the tourist rental business, which operates on two floors of this 20-story building, with a separate access portal to the houses and another portal to the premises located from the third to seventh floors.

The Court reaches the same conclusion on another issue resolved in the second order, which affects certain building owners in Saint Sebastianwho filed a lawsuit against their community in order to have the developer cancel the prohibition contained in the building codes and purchase and sale agreements for housing, which established that the implementation of any economic activity (office, study, consultation, clinic, etc., …) unless The portal community did not resolve this unanimously.