In the case of condominium owners' associations, the question may arise as to whether tourist vacation rentals are possible. In Spain, it was questionable whether a qualified majority of the condominium owners' association is sufficient for a ban on tourist vacation rentals or whether such a ban must be decided unanimously.
Until now, the majority of Spanish courts have assumed that such a ban must be decided unanimously. The Supreme Court has now contradicted this, confirming that a qualified majority of condominium owners is sufficient.
The result was based on the first application and interpretation by the Supreme Court of Article 17.12. of the Spanish Residential Property Act, according to which an agreement that restricts or conditions the exercise of the rights referred to in Article 5(e) of Law 29/1994 of November 24 on Residential Leases requires the consent of three-fifths of the total number of owners.
One of the reasons given by the court for this decision was that this result also corresponds to the conflicting interests of the owners. Furthermore, if the double two-thirds majority was not permitted, the dissenting vote of the owner of the affected apartment would be sufficient to prevent the agreement from being accepted.
A distinction must be made between the ban on vacation rentals in homeowners' associations and their permission. Many Spanish federal states, including the Balearic Islands, have issued different regulations and majorities for the permission of vacation rentals in condominium communities. However, the federal states do not have the legal competence to also regulate the ban, which is why the standardized federal regulation from the Condominium Act and the Residential Tenancy Act must be used here.
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
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