Communities of Owners and Holiday Rentals: Complete Legal Guide
The rise of tourist rentals and neighbourly coexistence
The tourist accommodation market has undergone a radical transformation over the last decade. The proliferation of digital platforms has made it easier for thousands of owners to decide to use their properties for short-term lets. However, this phenomenon has generated a constant debate surrounding the regulations of communities of owners and holiday rentals. Coexistence between regular residents of a building and temporary guests is not always easy, which has led legislators and courts to define an increasingly strict regulatory framework.
For owners of tourist-use properties (VUTs), fully understanding their rights and obligations is not just an option, but an imperative necessity to avoid administrative sanctions, lawsuits, and costly community conflicts. In this guide, we will comprehensively analyse the legal ecosystem regulating this activity in Spain, from national regulations to the internal rules of each building.
The legal framework of holiday rentals in Spain
The regulation of tourist-use properties in Spain is notable for its complexity and fragmentation. There is no single law that controls this activity uniformly across the country; instead, three regulatory levels coexist, which every owner must know and respect:
- State Regulations: Governed mainly by the Horizontal Property Act (LPH) and, residually, by the Urban Leasing Act (LAU), which specifically excludes tourist rentals from its scope of application, referring them to sectoral tourism regulations.
- Regional Regulations: Each Autonomous Community has exclusive competence in tourism matters. These administrations define what is considered a tourist property, what technical and habitability requirements the property must meet, and how to obtain a tourist licence.
- Municipal Regulations: Town councils, through their general urban development plans (PGOU) and municipal ordinances, have the capacity to limit the location of these accommodations, require commercial activity licences, or establish saturated zones where no further openings are permitted.
The Horizontal Property Act (LPH) and its evolution
Act 49/1960, of 21 July, on Horizontal Property, is the basic pillar regulating relations between the co-owners of a building. Historically, any modification to a community's statutes required the unanimity of all owners. This made it virtually impossible for a community to limit or ban the establishment of tourist properties if a single owner opposed it.
To correct this imbalance and provide communities with control tools in the face of increasing nuisances, the Spanish Government approved Royal Decree-Law 7/2019, of 1 March, on urgent measures regarding housing and rentals. This reform introduced a historic modification to Article 17 of the LPH, facilitating the adoption of restrictive agreements without the need to reach unanimity.
What does Article 17.12 of the LPH say? The three-fifths quorum
The introduction of paragraph 12 in Article 17 of the Horizontal Property Act marked a before and after for the holiday rental sector. This article literally states the following:
"The agreement by which the exercise of the activity referred to in letter e) of Article 5 of Act 29/1994, of 24 November, on Urban Leasings, is limited or conditioned, under the terms established in the sectoral tourism regulations, 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 mechanism, commonly known as the three-fifths rule (3/5), substantially reduces the majority required for a community of owners to take restrictive measures against short-term rentals.
What does "limiting or conditioning" imply?
For years, there was an intense legal dispute over whether the term "limiting or conditioning" allowed communities to completely ban holiday rental activities. Some legal scholars argued that a total ban exceeded the concept of "limiting". However, the jurisprudence of the Supreme Court has settled the issue definitively, confirming that communities of owners do have the power to ban the establishment of new tourist-use properties through this qualified majority of three-fifths.
The double majority: Owners and participation quotas
For an agreement adopted at the owners' meeting under Article 17.12 to be fully valid, it must meet a double representation requirement:
- Personal majority: At least 60% of the total owners in the building (three-fifths) must vote in favour.
- Financial majority: The owners voting in favour must represent at least 60% of the community's participation quotas.
If both percentages are not achieved simultaneously, the agreement will not be considered approved and will lack legal validity to restrict the activity.
The non-retroactivity of prohibition agreements
One of the fundamental legal principles in Spanish law is the non-retroactivity of unfavourable provisions or those restricting individual rights. In the context of regulations for communities of owners and holiday rentals, this has a direct and crucial application for investors and managers of tourist accommodation.
If an owner already has a tourist licence granted by the regional administration and has legally started the activity before the community of owners votes and approves the ban at a meeting, said community agreement will not affect them. The owner may continue to operate their property as a holiday rental indefinitely.
The prohibition agreement will only have future effects (effects ex nunc), preventing other neighbours in the building who have not started the activity or do not have the corresponding licence from opening new tourist-use properties from the date the agreement is registered in the Land Registry.
The importance of registration in the Land Registry
For the ban approved by the owners' meeting to be fully effective against third parties (for example, future buyers of a flat in the building), it is absolutely essential that the agreement is notarised and registered in the corresponding Land Registry. If a buyer acquires a property free of registered charges and statutory limitations, the community of owners will not be able to prevent them from using the property for holiday rentals, even if an internal prohibition agreement existed prior to their purchase.
The increase in community fees for holiday rentals
Another tool that Royal Decree-Law 7/2019 granted to communities of owners is the possibility of establishing a financial surcharge on properties used for tourist rental activities.
The law allows, through the same quorum of three-fifths (3/5) of owners and participation quotas, an agreement to increase the participation in common expenses for the tourist property. However, this power has certain legal limits that must be scrupulously respected:
- Surcharge limit: The increase in the community fee can in no case exceed 20% of the ordinary fee corresponding to the property.
- Justification of the increase: Although the law does not require an exhaustive mathematical justification, it is understood that this surcharge compensates for the greater use and wear and tear of common areas (entrance halls, lifts, corridors) derived from the continuous transit of temporary guests.
- Non-retroactivity: Like the prohibition, the increase in fees cannot be applied retroactively to periods already accrued, although it can be applied to owners who were already legally exercising the activity once the agreement is approved at a meeting for future financial years.
Community Statutes vs. Internal Rules and Regulations
It is very common to confuse the community statutes with the internal rules and regulations, but legally they are completely different instruments, with different levels of legal force and approval requirements:
| Feature | Community Statutes | Internal Rules and Regulations |
|---|---|---|
| Definition | They govern the rules of constitution and exercise of property rights over flats and premises. | They govern the details of daily coexistence and the use of common services and areas. |
| Approval/Modification | Requires unanimity or the 3/5 rule for holiday rentals (according to Art. 17.12 LPH). | Approved by a simple majority of the owners present and represented at the meeting. |
| Registration in the Land Registry | Can be registered in the Land Registry to affect third parties. | Not registered in the Land Registry. Only binding on current residents. |
| Can it ban rentals? | Yes, if approved with the legal majorities and correctly registered. | No. Internal rules and regulations cannot limit private property rights. |
Therefore, if a community of owners intends to veto tourist properties solely through a rule in the internal rules approved by a simple majority, such an agreement will be null and void for violating the right to private property enshrined in the Spanish Constitution and the LPH.
How to manage a tourist property respectfully with neighbours
The best way to prevent the owners' meeting from deciding to limit or ban tourist activity in the building is to maintain a relationship of mutual respect and proactivity. Most neighbour complaints are not due to the activity itself, but to the lack of control over guest behaviour. Professional management is the key to ensuring social peace in the community.
1. Noise control and clear coexistence rules
It is essential to establish strict rules of conduct for guests from the moment they book. These rules must include a ban on holding parties, respect for the community's quiet hours (generally from 22:00 to 08:00), and the correct use of common areas such as lifts, swimming pools, or terraces.
Many owners choose to install smart noise sensors (such as Minut or Roomonitor) which do not record conversations but alert the manager if the decibels exceed permitted limits, allowing preventive action before a neighbour calls the police.
2. Efficient synchronisation to avoid overcrowding
The uncontrolled flow of guests can overcrowd the building's common areas, generating a sense of insecurity and annoyance among regular residents. To avoid these problems, it is vital to have advanced technological reservation management systems. Using a professional tool for booking synchronisation helps avoid dreaded overbooking and precisely manages check-in and check-out calendars, reducing the impact of foot traffic in the building's common areas.
3. Impeccable cleaning and maintenance of common areas
The constant transit of luggage and people can dirty or damage the entrance and landings more quickly than conventional residential use. The VUT owner must take responsibility for keeping the areas surrounding their property in perfect condition. Implementing control checklists for cleaning teams ensures that, after each guest departure, the apartment and immediate accesses are left spotless, immediately reporting any damage in the common areas for quick repair.
The injunction action: The community's legal path against the owner
Even if the community of owners has not banned holiday rentals in its statutes, it has very powerful legal mechanisms to act against owners whose guests cause serious and repeated nuisances. The main legal instrument is the injunction action, regulated in Article 7.2 of the Horizontal Property Act.
This article expressly prohibits the owner and the occupant of the flat from carrying out activities in it that are harmful to the property, or that contravene general provisions on annoying, unhealthy, harmful, dangerous, or illegal activities.
The procedure for initiating the injunction action
For a community of owners to legally sue a tourist property owner and demand the cessation of the activity, it must follow a rigorous legal procedure:
- Prior written request: The community president, on their own initiative or that of any owner, must formally request (usually via burofax with acknowledgement of receipt and text certification) that the property owner and, if applicable, the tenants, immediately cease the annoying activities. This letter must expressly warn that, if they persist, legal action will be initiated.
- Convening of the Owners' Meeting: If the offender ignores the request and the nuisances continue, the president must convene an extraordinary owners' meeting to expressly authorise the filing of the injunction lawsuit. This agreement only requires a simple majority of those attending.
- Filing the civil lawsuit: Once the meeting's agreement is approved, the lawsuit is filed before the corresponding Courts of First Instance. It is essential to provide solid evidence of the nuisances (police reports, neighbour complaints, acoustic measurements, testimonies, etc.).
Consequences of a ruling against the owner
If the judge rules in favour of the community of owners, the consequences for the tourist property owner can be extremely severe and damaging to their assets:
- Definitive cessation of the activity: The court will order the immediate and definitive ban on using the property for holiday rentals.
- Deprivation of the use of the property: The law allows the judge to deprive the owner of the use of the property for a period of up to three years, depending on the severity of the facts and the repetition of the nuisances. During this time, the owner will not be able to live in the property or rent it out in any way.
- Compensation for damages: The owner can be ordered to pay financial compensation to the affected neighbours for the moral and material damages caused.
Recent Supreme Court jurisprudence on tourist rentals
The judicial interpretation of regulations on communities of owners and holiday rentals has undergone constant evolution. In recent years, the Supreme Court has issued several highly relevant rulings that have unified doctrine and clarified the scope of the rights of both parties. You can consult the official publications of the judiciary on the General Council of the Judiciary to follow the jurisprudence in detail.
Rulings of December 2023: A shift in favour of communities
In two historic rulings handed down at the end of 2023, the Supreme Court validated the ability of communities of owners to ban tourist properties in their statutes by interpreting pre-existing clauses. The High Court determined that tourist rentals constitute an economic and commercial activity. Therefore, if a community's statutes contain a clause that generically prohibits the use of properties for commercial, business, or professional activities, said prohibition also covers the restriction of tourist-use properties, without the need for the statutes to explicitly mention the term "holiday rental".
Ruling of October 2024: Confirmation of the 3/5 quorum for the ban
In an even more recent ruling, the Supreme Court ratified that the three-fifths rule of Article 17.12 of the LPH is fully applicable to agree on a total ban of the activity in the building. This ruling put an end to the discrepancies existing between different Provincial Courts, consolidating the right of neighbour majorities to protect the residential character of their properties against uncontrolled tourist exploitation.
Frequently Asked Questions (FAQ) on regulations for communities of owners and holiday rentals
Can my community ban holiday rentals if I already have a valid tourist licence?
No. Agreements adopted by the owners' meeting to ban or limit tourist properties are not retroactive. If you already had the corresponding administrative licence and were legally operating the activity before the agreement was approved, your acquired right is fully protected and you will be able to continue your activity indefinitely.
What happens if an owner rents out their flat to tourists without a licence in a community that bans it?
In this case, the owner faces a double sanction path. On the one hand, the community of owners can initiate an injunction action through the courts and request the closure of the activity. On the other hand, the regional or municipal administration can impose very high fines for carrying out a clandestine tourist activity without the mandatory responsible declaration or licence.
Can the community fee surcharge be applied retroactively?
No. The increase in participation quotas for common expenses (up to a maximum limit of 20%) can only be applied from the moment the agreement is validly approved at the owners' meeting and formally notified. Arrears cannot be claimed for periods prior to the adoption of the agreement.
Is it legal for the statutes to ban holiday rentals but allow seasonal rentals?
Yes. Seasonal rentals (by the month, for studies, work, etc.) are regulated by the Urban Leasing Act (LAU) and are not considered a tourist or commercial activity under the terms of the sectoral tourism regulations. Therefore, the limitations imposed under Article 17.12 of the LPH only affect tourist-use properties (VUTs) and not seasonal or long-term rentals.
How can I find out if the building where I want to buy a flat bans holiday rentals?
Before purchasing a property with the intention of using it for tourist rentals, it is essential to request a Nota Simple (land registry certificate) from the Land Registry. This document will state the community statutes if they have been registered. Likewise, it is highly recommended to ask the property manager or the community president for a certificate stating whether there is any agreement approved at a meeting that limits or bans this activity in the building.
Conclusion: Towards a harmonious and professional coexistence
The tension between communities of owners and holiday rentals does not have to be resolved through constant conflict or absolute prohibition. The path to success in this sector lies in the professionalisation of management and scrupulous respect for coexistence rules.
Owners must understand that their economic activity takes place within other people's living space. Therefore, investing in noise control technologies, automating communication with guests to remind them of house rules, performing impeccable property maintenance, and using advanced tools to coordinate bookings are the best strategies to prove to neighbours that a tourist property can integrate harmoniously into any residential building.