The ban on holiday rentals

The jurisprudential doctrine in matters of Horizontal Property establishes the possibility of prohibiting or limiting the exercise of an activity in a private property, when it is in the general interest of the community of owners, as long as this is done by statute or by agreement in the Meeting of Owners. However, the latest modification of the Law does not contemplate the jurisprudential doctrine that had been applied until then in the courts, but rather the aforementioned article has modified the possibility of establishing limits and prohibitions to this activity, instead it states that there is the possibility of “limiting or conditioning”.

But, what about a ban? The prohibition is not included in the wording of the regulation.

The Legal Congress of the Malaga Bar Association has dealt with the subject of prohibitions and limitations in the area of Horizontal Property in the communities of owners and in residential dwellings for tourist use.

The Bureau focused on the interpretation of the article, which raised the question of the jurisprudential doctrine established by the First Chamber of the Supreme Court on limitation or prohibition. The problem is that the High Court has not yet ruled on the matter. However, the Provincial Courts have done so, so these rulings are the only ones that exist until the Supreme Court rules and establishes the doctrine on what majorities are required for the prohibition of the exercise of these activities.

The resolutions of the owners’ meeting do not have retroactive effect

For the agreement by which special expenses quotas are established or an increase in the share of the common expenses of the dwelling where said activity is carried out, as long as these modifications do not imply an increase of more than 20%, without these agreements having retroactive effects.

With regard to how to justify the agreement of the Board by which special quotas of expenses or an increase in the share of the common expenses of the dwelling are established, Puche states that it can be justified by the intensive use or enjoyment of the common elements or installations by the guests.

But, who is affected by the retroactive agreements: all the owners who were owners before the approval of the agreement, only those who carried out the activity, or only those who had a licence to carry out the activity?

The Provincial Courts give an answer to this question by ruling that they will not affect the owners who:

• had submitted the responsible declaration;
• that they have registered in the Register of Tourism Businesses and Activities;
• they have requisitioned preparatory acts for the start of the activity;
• who have acquired the property before the approval of the agreement;
• retroactivity would also not affect owners who had acquired a licence before the approval of the agreement;
• nor those who at the time of the resolution were already properties assigned for tourist use.

If you have any doubts about this subject, please do not hesitate to contact us by telephone at Núria Martí García or by e-mail at nmg@btsasociados.com, we will be delighted to help you.