Tourist Apartments: Can the Community of Owners Ban Them?

🇪🇸 Read the original in Spanish

The boom in viviendas de uso turístico (VUTs / tourist apartments) has completely transformed the real estate market and coexistence within communities of owners in Spain. What began as a collaborative economy alternative has, in many cases, become a constant source of neighborhood conflicts due to the coming and going of suitcases, noise at unsocial hours, and the intensive use of common areas. If you are an owner wondering if your community of neighbors can legally ban the establishment of new tourist apartments in your building, or if you are an investor who fears having your activity restricted, in this reference article from AbogadoAI we analyze in depth the Spanish legal framework, the steps required to adopt this decision, and the limits imposed by the jurisprudence of the Tribunal Supremo (Supreme Court).

The legal framework: What does the law say about banning tourist apartments?

The regulation of tourist apartments in Spain is a complex puzzle involving regional regulations (competent in tourism matters), municipal ordinances (urban planning), and state legislation regulating property and leases. To understand if a community of owners can ban this activity, we must mainly look at two legal texts: the Ley sobre Propiedad Horizontal (LPH / Horizontal Property Act) and the Ley de Arrendamientos Urbanos (LAU / Urban Leases Act).

The Horizontal Property Act and Article 17.12

The turning point in this matter occurred with the reform of the Ley sobre Propiedad Horizontal introduced by Real Decreto-ley 7/2019, de 1 de marzo (Royal Decree-Law 7/2019, of March 1), on urgent measures for housing and rentals. This reform introduced Article 17.12 of the LPH, which relaxed the majorities required to limit or condition the activity of holiday rentals.

Before this reform, any modification of the constitutive title of the horizontal property that involved banning an activity required the unanimity of all owners. Following the reform, Article 17.12 establishes that the agreement to limit or condition the exercise of tourist rental activity will require the favorable vote of three-fifths (3/5) of the total number of owners who, in turn, represent three-fifths (3/5) of the participation quotas.

Does limiting or conditioning equal banning? The Supreme Court clarifies the debate

For years, there was an intense legal battle over whether the term "limit or condition" used by the LPH actually empowered communities to completely "ban" the opening of new tourist apartments.

This controversy has been definitively settled by the Tribunal Supremo in its recent rulings at the end of 2024. The High Court has ruled that yes, communities of owners can ban tourist rental activity in the building through the vote of three-fifths (60%) of the owners. The Supreme Court interprets that a ban is an intrinsic limitation of the activity and that requiring unanimity would empty the 2019 legal reform of its content, the spirit of which was to make it easier for communities to protect neighborhood coexistence.

The Urban Leases Act (LAU) and the Housing Right Act

It is essential not to confuse tourist rentals with seasonal rentals or primary residence rentals regulated by Ley 29/1994, de 24 de noviembre, de Arrendamientos Urbanos (LAU). Article 5.e) of the LAU expressly excludes from its scope of application the temporary transfer of use of the entirety of a furnished and equipped dwelling in conditions for immediate use, marketed or promoted through tourism offer channels and carried out for lucrative purposes, when it is subject to a specific regime derived from its sectorial tourism regulations.

For its part, the recent Ley 12/2023, de 24 de mayo, por el derecho a la vivienda (Housing Right Act), although introducing significant limitations on residential rental prices and defining stressed residential market areas, does not modify the capacity of communities of owners to veto tourist apartments under the LPH, although the current political and social context tends to favor the restriction of these tourist licenses to protect access to permanent housing.

Surcharges on community fees: An alternative to a ban

The same Article 17.12 of the LPH grants another very powerful tool to communities of owners that do not wish to radically ban the activity, but do want to compensate for the wear and tear that tourists cause to common elements (elevator, entrance hall, swimming pool, etc.).

The community can agree, by the same majority of three-fifths (3/5) of owners and quotas, to establish a special expense quota or an increase in the participation of common expenses for the property where the activity is carried out. The law establishes a strict quantitative limit: this increase may not exceed 20% of the ordinary fee that would correspond to that property. It should be noted that these agreements do not have retroactive effects; that is, they will not affect owners who already held a legal and active tourist license prior to the adoption of the agreement.

Step-by-step practical procedures to ban tourist apartments in your community

If you want to veto the establishment of new tourist apartments in your building, a simple hallway chat is not enough. A strict legal procedure must be followed for the agreement to be fully valid and binding against third parties (future buyers of apartments in the building).

Below, we detail the steps you must follow:

1. Inclusion on the Agenda: The President of the community or owners representing at least 25% of the participation quotas must formally request the calling of a Junta General (General Meeting, either ordinary or extraordinary), clearly including on the agenda the proposal to ban the use of properties in the building as tourist apartments, as well as the modification of the community's Estatutos (Bylaws).
2. Holding the Meeting and Voting: The point is debated at the Meeting. For the agreement to succeed, the favorable vote of three-fifths (3/5) of the total number of owners and participation quotas is required.
3. Counting the votes of absent owners: If the quorum of three-fifths is not physically reached at the Meeting, the rule of the presumed vote of the absent owner applies. The minutes must be notified to all owners who did not attend. They have a period of 30 calendar days to state their disagreement. If they do not reply within that period, their vote is counted as favorable to the agreement adopted at the Meeting.
4. Drafting the Minutes: The Secretary of the community will draft the minutes reflecting exactly the result of the vote, detailing the participation coefficients and the names of the owners who voted in favor, against, or abstained.
5. Execution of Public Deed before a Notary: Once the agreement is definitively approved (after the period for absent owners has elapsed), the President or the property administrator duly authorized must go to a Notary to execute the agreement to modify the community Bylaws into a public deed.
6. Registration in the Property Registry: This is the most crucial step. For the ban to affect future purchasers of the apartments (people who buy an apartment in the building with the intention of using it for tourist rentals), the statutory modification must be registered in the Registro de la Propiedad (Property Registry) where the parent property of the building is registered. If it is not registered, the ban will only bind the current owners who voted or consented, but not a third party in good faith who purchases an apartment subsequently.

Practical examples with real figures

To better understand how majorities and expense surcharges work, we analyze two common scenarios in communities of owners in Spain.

Example 1: Calculating the 3/5 majority in a residential building

Let's imagine a community of owners in Valencia consisting of a building with 20 properties, where all have the same participation coefficient (5% each).

• To approve the ban on new tourist apartments, the favorable vote of 3/5 of the owners and quotas is needed.
• 3/5 of 20 owners equals exactly 12 owners.
• 3/5 of the quotas (100%) equals 60% of the participation.
• At the Extraordinary General Meeting, 10 owners attend in person. All vote in favor (representing 50% of the quotas). This is not enough at that moment.
• The minutes are sent to the 10 absent owners. If, after 30 calendar days, at least 2 of the absent owners do not express their opposition, their votes are added to the favorable ones. This reaches the minimum of 12 owners and 60% of quotas, and the agreement is validly approved.

Example 2: The 20% surcharge on community fees

Let's take the case of Carlos, owner of a penthouse in Málaga that he operates as a tourist property with its corresponding license. The community of neighbors decides not to ban tourist apartments, but to apply the surcharge permitted by Article 17.12 of the LPH to compensate for the use of the pool and garden areas by guests.

• The ordinary community fee Carlos pays is €150 per month.
• The meeting approves by a 3/5 majority to apply the maximum surcharge allowed by law, which is 20%.
• The monthly increase applicable to Carlos's property will be:

$$\text{Surcharge} = 150\ \text{€} \times 0.20 = 30\ \text{€}$$

• Once the agreement becomes final, Carlos will pay a monthly fee of €180 (€150 ordinary fee + €30 tourist surcharge). The community cannot demand a higher amount under this concept.

Mistakes you must avoid

When trying to limit or ban tourist apartments in a community, it is very easy to make formal errors that can invalidate the entire process in the event of a legal challenge by a dissatisfied owner. Avoid the following mistakes:

• Believing the ban is retroactive: If a neighbor already has their tourist license granted by the Autonomous Community and is operating legally before the community approves the ban in the Bylaws, the agreement will not affect them. The law does not allow depriving someone of a previously legally acquired right, unless it is proven that they carry out annoying or unhealthy activities (Article 7.2 LPH).
• Failing to register the agreement in the Property Registry: If the community approves the ban by a 3/5 majority but simply keeps it in the minute book, the ban cannot be enforced against third parties. If a new buyer acquires an apartment in the building, they can apply for the tourist license and operate legally because the ban did not appear in the Property Registry when they acquired the property.
• Adopting the agreement by simple majority: Thinking that, as it is a matter of ordinary coexistence, a majority of those attending the Meeting (simple majority) is enough. The law is categorical: a qualified majority of 3/5 of the total census of owners and coefficients is required.
• Attempting to apply a surcharge higher than 20%: Approving a 30% or 50% surcharge on community fees to financially "suffocate" the owner of the tourist apartment. Any surcharge exceeding the legal limit of 20% established in Article 17.12 of the LPH is null and void and easily challengeable in court.

Frequently Asked Questions (FAQ)

What happens if a neighbor operates a tourist apartment without a license from the Autonomous Community?

If an owner rents their property to tourists without the mandatory license or declaración responsable (responsible declaration) from the competent regional administration, they are committing a serious administrative offense. In this case, the community of owners, in addition to any corresponding civil actions, can report the activity to the Tourism Inspectorate of their Autonomous Community or the Town Hall, which usually leads to financial penalties that in many regions exceed €30,000.

Can the community ban room rentals (coliving) with the same majority?

No. The Supreme Court and the majority legal doctrine understand that renting by rooms is governed, in the absence of an agreement, by the Código Civil (Civil Code) and does not strictly fall within the definition of a vivienda de uso turístico (VUT) under regional regulations, unless the specific regulation of the Autonomous Community expressly equates both modalities. To ban room rentals, which are not considered a tourist activity in the strict sense, unanimity would still be required to modify the constitutive title.

If the building's original Bylaws already banned "commercial activities", does this include tourist apartments?

Yes. The Supreme Court has ruled in several judgments that tourist rentals constitute an economic and commercial activity. Therefore, if the foundational Bylaws of the building (drafted by the developer when constructing the property) already contained a clause expressly prohibiting the use of properties for commercial, business, or professional activities, this prohibition covers the veto of tourist apartments without the need for a new 3/5 vote.

Can an owner legally challenge the ban agreement adopted by the community?

Yes. Any owner who has recorded their vote at the Meeting, voted against, or was absent and expressed their disagreement within 30 days, can challenge the agreement in the civil courts within one year (as it is an agreement contrary to the Bylaws, according to Article 18 of the LPH). However, if the agreement has scrupulously respected the 3/5 majorities and formal procedures, the chances of the challenge succeeding are nowadays very low following the jurisprudence established by the Supreme Court.

In summary

• Veto power: Communities of owners in Spain can indeed ban the establishment of new tourist apartments in their buildings.
• Required majority: The favorable vote of three-fifths (3/5) of the total number of owners and participation quotas (a 60%) is required.
• Financial surcharge: The community can increase the common expense fee of the tourist apartment up to a maximum of 20% with the same 3/5 majority.
• No retroactivity: Approved bans and surcharges do not affect properties that already had a legal and active tourist license prior to the agreement.
• Mandatory registration: For the ban on tourist apartments to affect future buyers of properties in the building, it is essential to register the agreement modifying the Bylaws in the Property Registry.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.