The latest developments in the regulation of dwellings for tourist use

Here is a brief review of the latest novelties in the regulation of dwellings for tourist use at both state and regional level:

Royal Decree-Law 7/2019, of 1 March, on urgent measures on housing and rent.

The publication of this rule in the Official State Gazette took place on 5 March, and must be validated by the Permanent Deputation of the Congress of Deputies within 30 days of its promulgation. One of the reasons that, according to his Explanatory Memorandum, justify the extraordinary and urgent need for the measures included in it, is the rise in house prices caused, among other factors, by: (i) the growing phenomenon of tourist rental accommodation through p2p platforms and, (ii) the intense growth in demand for rental accommodation in Spain. In relation to dwellings for tourist use, the following modifications are introduced:

• With regard to Article 5 of Law 29/1994, of 24 November, on Urban Leases (LAU), which establishes leases excluded from its scope of application, the limitation that for the temporary lease of dwellings for tourist use these must necessarily be marketed through tourist offer channels is eliminated, allowing them to do so by any other means of marketing or promotion.
• Law 49/1960 of 21 July on Horizontal Property is amended, adding a new section 12 to Article 17, which provides a qualified majority for the following agreements: (i) those which limit or condition the exercise of the activity of dwellings for tourist use, and (ii) those that establish special expenditure quotas or an increase in the share of the common expenses of the dwelling where said activity is carried out, provided that these modifications do not imply an increase of more than 20%. The quorum is therefore relaxed, from unanimity to 3/5. These agreements will not have retroactive effects, so they would not have any effect on the dwellings for tourist use that are already legally established in the community.

Annulment of several provisions of Decree 113/2015, of 22 May, approving the Regulation on tourist dwellings in the Autonomous Community of the Canary Islands.

In relation to this regulation, the Supreme Court issued one ruling on 12 December 2018 and two on 15 January 2019, confirming those issued by the High Court of Justice of the Canary Islands, which annulled several precepts of the autonomous Decree. In particular, the following:

• Article 3.2, which prohibited tourist dwellings on tourist land located within tourist areas or tourist estates, as well as dwelling located on tourist estates or mixed tourist residential estates.
• Article 5.2, which prohibited users from using the dwelling for uses other than the tourist use for which it was contracted, and from engaging in other activities which would be contrary to the usual uses of such dwelling or which would contravene the applicable rules.
• Article 12.1, which prohibited the tourist rental by room or, in other words, the shared use of tourist dwellings.
• Article 13.3, which established a maximum period of 15 days after the presentation of the Responsible Declaration, for the dwelling to be registered by the Island Council in the General Tourist Register of the Autonomous Community of the Canary Islands, and for the delivery of the complaint sheets, the poster announcing them and the inspection book.

One of the most interesting aspects of these rulings is the Supreme Court's interpretation of article 5.e) of the LAU. The Government of the Canary Islands, as an appellant, alleged that the prohibition of touristic rental of the dwelling by rooms was contained in this article, so that the judgments of the High Court of Justice violated this precept and, therefore, the principle of legality and the established system of sources. The Supreme Court understands, however, that article 5.e) only excludes from its scope of application the temporary tourist rental of the entire dwelling, but it cannot be inferred from this that the temporary tourist rental of rooms is prohibited. It also takes the view that such a prohibition is not justified, since the Decree does not establish the reasons why the tourist rental of rooms constitutes a greater disturbance to coexistence than the tourist rental of the complete dwelling, or why such a prohibition is the only solution to avoid such a disturbance.

In addition to the Canary Islands, there are other autonomous communities in which the regulations governing dwellings for tourist use expressly establish that the tourist rental must be of the entire dwelling or directly prohibits the tourist rental lease by rooms. Examples of this can be found in the regulations of La Rioja, Galicia, Castilla y León, Castilla-La Mancha, Madrid, Aragón or Cataluña (where a modification that will regulate shared homes is pending). These judgements of the Supreme Court could constitute a reason for raising indirect appeals against the said autonomous regulations, since, in accordance with the rulings of the same, such a prohibition would be illegal.

Draft Decree of the Community of Madrid amending Decree 79/2014, of 10 July, regulating tourist apartments and dwellings for tourist use in the Community of Madrid.

Finally, it is worth mentioning this Draft Decree of the Community of Madrid, which was published in the Transparency Portal of the Community of Madrid on 1 March 2019. Among the most outstanding novelties are the following:

• Modification of the definition of dwellings for tourist use in order, among other aspects, to clarify that this consideration applies to dwellings dedicated "habitually" to this activity. It also changes the definition of "habitual exercise of the tourist activity" establishing that this takes place from the moment in which the interested party publicises the dwelling by any means and presents the obligatory Responsible Declaration of beginning of activity. Additionally, it is clarified that the dwellings of this use cannot be used "by the users" as a permanent residence, thus clarifying that the owner could use it as his permanent residence.
• Exigibility of a certificate of suitability for dwelling for tourist use (CIVUT) which must be signed by a competent technician, which certifies compliance with some parameters and requirements set out in the Decree and must be submitted together with the Responsible Declaration.

A period of 6 months has been set for the adaptation to the new regulations of the dwellings for tourist use that were registered in the Tourism Register before the entry into force of the Decree.