As already hotly discussed in recent months and years, the Spanish Supreme Court has now finally spoken out on 07.02.2023 for a ban on vacation homes. This now confirmed the judgment of the court of 1st instance and thus cancels the judgment of the court of 2nd instance, the Supreme Court of the Balearic Islands, from September 2021. Thus, the ban on the rental of vacation apartments in apartment buildings in Palma de Mallorca is legal.
In September 2021, the Court of 2nd Instance upheld the appeal by the vacation rental association Habtur and annulled the 2018 agreement of the City Council, which prohibited the rental of apartment buildings for tourist purposes. However, the judges of the Spanish Supreme Court agree that in practice this means that the lifting of this ban would turn all apartments in Palma into potential vacation homes. However, this decision would go beyond the possibilities allowed by regional regulations.
To bring about the overturning of the 1st instance ban, the Spanish Supreme Court agrees, the plaintiff side should have taken the regional regulations established in the 2012 Tourism Law to the Constitutional Court instead of challenging the ruling alone.
This means that the decision of the 2nd instance court was not based on an assessment of whether the 1st instance judgment was justified or not. Accordingly, a formal error was committed on the part of the plaintiff's side and it was not examined whether the Tourism Act was actually unconstitutional.
The Spanish Supreme Court now agrees that the zoning that has been done cannot be overturned
can without first challenging the regional ordinances that had allowed them.
The court of second instance, according to the Spanish Supreme Court, focused solely on the fact that the court of first instance had limited the number of tourist apartments without taking into account the interests of the general good. However, this criterion is invalid because, as already mentioned, all homes could potentially be converted into vacation homes. However, this is therefore contrary to the regional regulations.
The Supreme Court refers to similar rulings such as the Barcelona Housing Ordinance and a ruling by the European Court of Justice last year. The right to housing, the high density of vacation homes, and the steadily rising rents were successfully cited by the municipal bodies as arguments for restrictions. Finally, the judgment of the court of second instance was not enforced because it was not legally binding. Accordingly, the rental of vacation apartments in apartment buildings in Palma is theoretically prohibited since the 2018 plenary session and will remain prohibited after the ruling of the Spanish Supreme Court.
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
What rights do they still have?
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