Can a community of owners prohibit tourist apartments?

Pioneer judgment

In general, the activity carried out in tourist apartments is usually identified with negative connotations. However, tourist apartments are not per se an annoying, harmful and noisy activity, in the same way that the activity carried out in them does not in itself cause damage or danger to the building. p>

In these terms, Sentence 45/2022 of the Court of First Instance No. 7 of Córdoba ratified last July by the Provincial Court has been pronounced, coming to describe as absurd such qualifiers about tourist apartments due to the fact that they are, since as the sentence clearly highlights, the inconvenience cannot be presumed but rather we have to wait for it to occur, because

“the thesis of prohibiting tourist use because it causes inconvenience to the neighbors would lead to the absurdity of also prohibiting the use of homes by owners with more than five members or social rental in identical situations.”

This is a matter of great interest since after the pandemic the tourism sector is on track to recover the levels prior to 2020, which means that many of the apartments dedicated to tourist rental that changed destination in recent years, are once again exploited by their owners under this modality.

Uncertainty in the application of the Horizontal Property Law

The proliferation of tourist apartments located in buildings for residential use has generated a great problem in recent years that Horizontal Property Law did not have any provision. This deficiency was filled by the legislator in 2019 through the promulgation of the Royal Decree-Law 7/2019, of March 1, on urgent measures regarding housing and rent, which among many other issues introduced a reform of the horizontal property regime in order to specify (or at least try) the qualified majority necessary for the communities of owners to limit or condition the exercise of the activity.

Such reform was materialized in art. 17.12 Horizontal Property Law, by which the required majority is set at 3/5 for the adoption of agreements that:

“limit or condition the activity referred to in letter e) of article 5 of Law 29/1994, of November 24, on Urban Leases”

that is, tourist activity.

However, such reform and the specific wording given to the aforementioned art. 17.12 Horizontal Property Law have proved insufficient given that, even to this date, there is no unanimous criterion in relation to the possibility of prohibiting (but not limiting or conditioning) the exploitation as a tourist apartment of a floor counting for it only with the majority of 3/5 indicated in said article.

The Provincial Court of Córdoba has chosen to point out that in order to prohibit the exercise of the tourist apartment activity, the unanimous agreement of all the owners will be necessary understanding that, in the case of a modification of the constitutive title, the majority provided for in art. 17.6 Horizontal Property Law.

However, the owners may adopt agreements that limit such activity (for example, to a maximum number of people, establishing the need to insure the activity against damages, establishing days and hours of entry and exit of guests, etc.) requiring only a majority of 3/5 of the total number of owners.

Therefore, the controversy lies in which precept of the Horizontal Property Law to apply to carry out this prohibition. For the Córdoba Provincial Court, article 17.12 LPH that the communities of owners have been applying and admitting the Property Registries is not applicable, since this refers to limiting or conditioning, which in no case means prohibiting, /strong>for which the 17.6 LPH should be applied.

Perhaps, the idea of the legislator was not so much to prohibit tourist apartments (which is what has been reached in many communities of owners) but to increase and promote residential rental. However, despite the fact that in response to the aforementioned sentence it has been decided not to file an appeal, it will not take long for the Supreme Court to rule, given that the discrepancy that is already beginning to exist between different Provincial Courts will force a pronouncement by the High Court.

In fact, the Provincial Court of Pontevedra, for example, has ruled in the exact opposite direction to the Provincial Court of Córdoba and has revoked the Judgment of the Illustrious Court of First Instance 13 of Vigo that declared null and void the agreement by a majority of 3/5 adopted by a community of owners that prohibited tourist apartments.

We will see if the criterion adopted by the Supreme Court is the one indicated by the Provincial Court of Córdoba or if it opts for marking another line of jurisprudence. There is no doubt that the criteria adopted will mark a before and after in one of the most relevant, current and exponential activities in our country.

We must therefore conclude that until said pronouncement exists, we will be obliged to attend to the different criteria established by the Provincial Courts of the town where the property in question is located to know, in each specific case, what is the applicable criteria.

Departamento Derecho Civil y Mercantil

10/10/2022