Can your Homeowners’ association prohibit you from owning a property for seasonal or tourist rentals? If you have a holiday rental property (Airbnb or other platforms), read on.
It is becoming more and more common for Homeowners’ association to prohibit the use of a flat in the community for tourist purposes, due to the noise they may cause or the improper use of common areas. But these prohibitions cannot be retroactive and must be carried out with a series of requirements.
PROPERTY LAW
In Spain, and especially in coastal areas such as the Costa del Sol, it is common for companies and individuals to invest in flats, flats or houses for seasonal, weekly or fortnightly rentals, i.e. for tourist purposes. There are more and more cases where the Homeowners’ association, rightly or wrongly, are taking the decision to prohibit these properties for tourist purposes due, in some cases, to noise, constant entry and exit of people and, most commonly, improper use of common areas such as swimming pools, landings, etc..
But these decisions require a series of requirements in order to be taken. Firstly, it is necessary that this decision is taken by agreement of the Homeowners’ association and also that the requirements of art. 17. 12 of the Horizontal Property Law: "The agreement limiting or conditioning the exercise of the activity referred to in letter e) of article 5 of Law 29/1994, of 24 November, on Urban Leases, in the terms established in the tourism sector regulations, whether or not it involves modification of the constitutive title or of the statutes, will require the favourable vote of three fifths of the total number of owners who, in turn, represent three fifths of the participation quotas. Likewise, the same majority shall be required for a resolution establishing special expense quotas or an increase in the share of the common expenses of the dwelling where such activity is carried out, provided that these modifications do not imply an increase of more than 20%. These agreements shall not have retroactive effects".
What is important about this article is that this decision will only affect flats that have not been registered before, as these decisions are not retroactive. This is also established in art. 5 of the same Horizontal Property Law as the Civil Code, but, be careful, only in the case that they are registered in the Land Registry.
This is also established by the Dirección General de los Registros y del Notariado, which states that an already constitutive title cannot be modified, even by means of a collective consent, if the title was already correctly registered prior to the claim. This registration also affects the Homeowners’ association itself, who will have to modify the Articles of Association and notify all the owners, although by being registered in the Register the notification is deemed to have been made.
Therefore, this also affects the new buyers of the flat that is already registered. If the flat was already registered for tourist purposes prior to the agreement, it will remain in force. Likewise, all flats that want to register in the Register of Tourist Homes and have no proof by any means that the Homeowners’ association has prohibited or limited this type of activity, will be able to register it.
What happens if I am aware of the prohibition, it is legally registered and I do not comply with it? In these cases we have to take into account that we would be facing a violation of the Statutes of the Homeowners’ association and, therefore, the provisions of art. 7 of the Horizontal Property Law would be applicable. This means that the President of the Community will require the person carrying out the prohibited activities to cease them immediately, under penalty of initiating the appropriate legal action. If the conduct continues, the President may bring an action for cessation against the person concerned, subject to prior authorisation by the Owners' Meeting, by means of a lawsuit.
Once the lawsuit has been filed, the judge may order the immediate cessation of the prohibited activity as a precautionary measure, under penalty of incurring the offence of disobedience. He may also adopt any precautionary measures that may be necessary to ensure the effectiveness of the cease and desist order.
If the judgement is upheld, in addition to the definitive cessation of the prohibited activity and the appropriate compensation for damages and prejudice, the deprivation of the right to use the dwelling or premises for a period not exceeding three years may be ordered. If the offender is not the owner, the sentence may declare the definitive extinguishment of all rights relating to the dwelling or premises, as well as its immediate release.
If you have or want to have a tourist flat and you need to register it, please contact us. If you have any doubts regarding a possible agreement being made by your Homeowners’ association, we will advise you so that your interests are put to good use.
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