In light of the latest decisions of the Spanish courts (STS 1671/2023 of November 29, STS 1643/2023 of November 27, STS 105/2024 of January 30, AP Las Palmas 552/2022 of June 23, AP Alicante 301/2021 of September 29, AP Asturias 175/2022 of April 28 and AP Madrid 249/2022 of July 6) on the subject of vacation rentals in communities of owners and multi-family homes, I would like to provide you with this update.
In the rulings of the Spanish Supreme Court, it was first clarified that a ban on vacation rentals is permissible if the articles of association of the community of owners contain this ban. It is further clarified that vacation rentals are an economic activity and if the articles of association prohibit economic activities without directly mentioning vacation rentals, vacation rentals are still covered by the prohibition of economic activities.
However, the Spanish courts are opening up at almost all levels and almost all Spanish regions in the cited court decisions in favor of vacation rentals and are now interpreting Article 17.12 of the Spanish Home Ownership Act (Ley de Propiedad Horizontal) in such a way that the community of owners may only regulate vacation rentals with a 3/5 majority, but may NOT prohibit them. Therefore, if there is no prohibition of vacation rentals in the articles of association and no unanimous resolution of the owners' meeting exists, vacation rentals are not effectively prohibited by the owners' association. Even the entry of an invalid resolution in the land registry does not make the resolution effective.
One of the reasons for this is that the decision on whether or not to allow vacation rentals is made by the competent state authority, i.e. in Mallorca the island council (Consell de Mallorca), and not the co-owners. The permission for vacation rentals must be communicated to the community of owners.
Communities of owners must also be careful here, as an unlawful ban on vacation rentals opens up the possibility that the encumbered owner can claim lost profits.
It also stipulates that vacation rentals may not be prohibited without a valid reason. Vacation letting per se does not constitute a nuisance and therefore cannot be prohibited from the outset by resolution, but there must first be a valid reason, e.g. a breach of the house rules.
For example, the community of owners can determine the conditions for vacation rentals with a 3/5 majority: increase of the community costs by up to 20% for vacation rentals, communication of the house rules to vacation guests, restriction of the use of the common property by vacation guests, check-in and check-out times, communication of vacation guest data to the property management, etc.
The owner is also obliged to pass on the data of his vacation guests to the property management. Therefore, when concluding the rental agreement, the owner must remember to obtain consent for this data to be passed on for this purpose. He must also point out in the rental agreement that incorrectly parked cars of the vacation guest can be towed away by a private towing service at his expense.
If the owner or his vacation guests violate these regulations, the owners' association can demand that the owner cease vacation rental activities and, if necessary, enforce them in court.
It should also be mentioned that an owner who rents his apartment to a vacation guest may NOT use the common property himself during this time. For example, they may not use the pool or tennis court during the rental period. Incidentally, this applies not only to vacation rentals, but also to long-term rentals.
Author:
Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)
dominic.porta@anwaltmallorca.eu
www.anwaltmallorca.eu
Do you need the assistance of a German lawyer for your vacation rental in Mallorca?
Porta & Associates is a law firm in Palma de Mallorca specializing, among other things, in real estate law in Spain.
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