Judges in Spain side with neighbours in latest crackdown on holiday lets

Conor Faulkner
Conor Faulkner - [email protected]
Judges in Spain side with neighbours in latest crackdown on holiday lets
A banner reading "No tourist flats" hangs from a balcony in Barcelona. Photo: PAU BARRENA/AFP.

The Spanish Supreme Court has backed two local communities with rules against tourist apartments in their buildings as part of an ongoing reaction against holiday lets in Spain.

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The Spanish Supreme Court has ruled in favour of local communities having the power to ban tourist rental apartments in their buildings.

The court backed vetoes against tourist rentals in buildings that expressly prohibit the use of apartments for economic activity in their bylaws.

In the two judgments recently issued, the court agreed that tourist rentals count as an economic activity, so tourist rentals cannot be installed in buildings that veto them.

READ ALSO: 'La comunidad': What property owners in Spain need to know about homeowners’ associations

The two buildings in question, in Oviedo and San Sebastián in northern Spain, have explicit clauses against the use of apartments for commercial activity in their comunidad rules.

The matter was first taken to the provincial Court of the Asturian capital, which called for "the immediate and definitive cessation of the activity of tourist rental or housing for tourist use" in the Oviedo building. The plaintiffs then appealed to the Supreme Court, where judges backed the decision.


The court was keen to highlight, however, that this ruling against tourist apartments was born from the specific rules of each building community, and unrelated to the reforms made to Spain's Horizontal Property Law that allowed neighbours to vote against them. In 2019, an extra clause was added to the law specifically regarding this matter.

It states: “The agreement that limits or conditions the exercise of the activity referred to in letter e) of article 5 of Law 29/1994, of November 24th, on Urban Leases, in the terms established in the tourism sector regulations, whether or not it involves modification of the constitutive title or the bylaws, will require the favourable vote of three-fifths of the total number of owners who, in turn, represent three-fifths of the participation quotas”.

This seems to suggest that in order to be able to rent your property out to tourists on platforms such as Airbnb, you will need at least three-fifths of your community of neighbours to agree to it. The particular wording of the law has been the subject of much legal controversy and judicial interpretation. The reason is because the wording only mentions the possibility for communities to "limit or condition" tourist use but they do not have the power to "prohibit" since the law does not expressly say so.

READ ALSO: Can my neighbours stop me from renting out my Spanish flat on Airbnb?


These two recent rulings, however, stem from pre-established building rules rather than community votes. The scope of the rulings is therefore limited, property experts say, since there are not that many buildings that explicitly ban economic activities in their apartment rules.

"More than four decades ago it was more common, but over the years it has gone down," Peio Mendia, Treasurer of the General Council of Associations of Property Administrators, told El País.

The proliferation of tourist apartments has caused controversy across Spain in recent years, particularly as they often inflate the market and drive up rental costs for locals.

READ ALSO: Why Madrid is struggling with its explosion of illegal holiday lets

In many major tourist cities around Spain, efforts have been made to limit or ban tourist apartments in certain parts of town. In Valencia, Palma de Mallorca, Seville, Madrid and Barcelona, among others, local government have tried an array of measures, whether it be introducing tourist taxes, limiting tourists apartments to the first or ground floor, that they are held to the same standards as hotels, or banning them in specific parts of the city, such as the historic old town.

Recent data shows that in the old town of Seville, 61.2 percent of residential homes are used for tourism purposes. In the area of ​​Madrid's Puerta del Sol, 28.3 percent are tourist apartments, while the figure stands at 18.3 percent in the centre of Valencia.



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