The Supreme Court has recently issued a ruling that will have significant implications for property owners’ communities throughout Spain, especially in tourist areas such as the Costa del Sol. In Judgment 1233/2024, the high court dismissed the appeal filed by a company that owned several properties in a development in Marbella, which challenged a community agreement that prohibited the rental of homes for tourist purposes.
Case Background
The conflict originated in a property owners’ community in Marbella that, in a meeting held in July 2019, adopted an agreement to prohibit the use of homes for tourist rentals. This decision was made under the Horizontal Property Law, modified by Royal Decree-Law 7/2019, which allows property owners’ communities to limit or condition this type of rental with a qualified majority.
The company owning several apartments in the building challenged the agreement in court, arguing that banning tourist rentals exceeded the powers provided for in the law, which only allowed for limitation or conditioning, but not prohibition of this activity.
Supreme Court Ruling
The Supreme Court, in its judgment of October 3, 2024, rejected the arguments of the appellant, confirming the legality of prohibiting tourist use in private properties of a community when this decision is made with the support of three-fifths of the owners.
The court holds that the total prohibition of tourist rentals is a legitimate form of property use limitation. It is argued that, although the law speaks of «limiting or conditioning,» this limitation can include a complete prohibition, as long as certain legal requirements are met.
In this case, these requirements are set out in Article 17.12 of the Horizontal Property Law, which states:
«The agreement to limit or condition the exercise of the activity referred to in letter e) of Article 5 of Law 29/1994, of November 24, on Urban Leases, in the terms established in the tourism sector regulations, whether or not it involves a modification of the constitutive deed or the statutes, will require the favorable vote of three-fifths of the total owners who, in turn, represent three-fifths of the shares. Likewise, this same majority will be required for the agreement to establish special expense quotas or an increase in the share of common expenses of the dwelling where said activity is carried out, provided that these modifications do not involve an increase of
more than 20%. These agreements will not have retroactive effects.»
Impact on the Costa del Sol
This ruling is of particular relevance in areas such as the Costa del Sol, where tourist rentals are common. Property owners’ communities, concerned about the impact that these rentals can have on coexistence, now have more legal backing to prohibit this activity if they so choose.
How Does it Affect Property Owners?
Property owners who wish to use their homes for tourist rentals must pay attention to their communities’ decisions. If the community adopts an agreement against tourist rentals, this will be binding as long as it has been approved with the necessary legal majorities, and will be mandatory for those owners who have not obtained registration in the Registry of Tourism of Andalusia beforehand. For these owners, as the rule states, the Property Owners’ Community can increase their community fees.
In any case, it is always advisable to seek legal advice to evaluate the specific circumstances of each case.
At Roji Abogados, we are a multidisciplinary law firm with over 25 years of experience. We are available to advise both property owners’ communities and individuals affected by these types of decisions, and to defend their interests in meetings, challenging minutes, claims for amounts owed, claims for unpaid fees, etc.
If you have any questions or legal concerns about property law and horizontal property, contact us to inquire about our fees and the possibility of scheduling an appointment with us at:
- contact@rojiabogados.com
- +34 952 211 011 and +34 607 202 361
- Send a message to Roji Abogados on WhatsApp: https://wa.me/34607202361
Source of the original news: C.G.P.J.
