New legislation on tourism and housing in Andalusia with special emphasis on dwellings for tourist use

The Andalusian Government has promoted two major pieces of legislation with a direct impact on tourism and more specifically on the type of dwellings for tourist use. On the one hand, we are referring to the Preliminary Draft Law on Sustainable Tourism in Andalusia, which was approved by the Governing Council on 6 February 2025, and on the other hand, to the novelties introduced by Decree-Law 1/2025, of 24 February, on urgent measures in housing.

The following are the main novelties that are intended to be introduced into the current regulatory framework and those already incorporated by the Decree-Law:

Extension of the catalogue of services and tourist accommodation and new procedure for registration in the Register of dwellings for tourist use

The Preliminary Draft Law significantly broadens the consideration of tourism services and tourism service providers, expressly including among them not only the provision of accommodation, intermediation and tourist information services, but also leisure activities and tourist transport. A new feature of the new text is that both travel agencies and related travel service companies will be considered as tourism intermediation companies, and therefore as tourism service providers.

We also highlight the extension of the consideration of tourist accommodation, which for the first time expressly incorporates the modality of dwellings for tourist use into its classification, which would be as follows: 

• Tourist accommodation establishments
• Dwellings for tourist use
• Any other that may be established by regulation. The typologies of accommodation in rural areas and unique accommodation are also introduced as a new feature

One of the most controversial novelties concerns the modification of the registration regime for dwellings for tourist use in the Andalusian Tourism Register.

The currently applicable regime requires the registration of the establishment prior to the start of the activity, and the registration number to be published in all advertising of the establishments. Registration takes place automatically ex officio upon presentation of the corresponding responsible declaration.

However, unlike for the rest of the types of tourist accommodation, for which automatic registration is maintained, the Preliminary Draft Law establishes a different regime for dwellings for tourist use, since registration will be carried out once compliance with urban planning regulations has been verified in the terms to be developed by regulation. In the absence of this regulatory development that specifies the procedure, this new regime entails the establishment of an authorisation regime, which is a clear departure from the usual system of responsible declaration that is generally applied, not only in the tourism sector but in many other areas of activity, which may raise doubts insofar as it could entail a disproportionate requirement and a potential breach of the principles of good regulation.

The dubious regulation on the urban compatibility of tourist and residential use for the establishment of dwellings for tourist use

Article 6 of Decree-Law 1/2015 introduces a new regulation on the compatibility of dwellings for tourist use with urban planning, stating that: "In those municipalities in which there are compelling reasons of general interest, duly justified and declared by their competent bodies, and prior justification of the proportionality of the measure, the residential use of a plot will not in itself enable the possibility of allocating the dwellings to tourist accommodation, being necessary that the urban planning foresees the compatibility of the use of tourist accommodation with the residential use and that the corresponding licence is obtained or the corresponding responsible declaration has been submitted".

This unclear wording could be interpreted to mean that, in order for a dwelling for tourist use to be built on a residential plot, it would be necessary for this compatibility to be expressly established in the planning. This seems to be indicated in Article 23 of the Preliminary Draft Law, which expressly states that "in order for a dwelling to be used for tourist accommodation, it will be necessary that the urban planning has foreseen the compatibility of this use with residential use, as well as having a licence or responsible declaration of change of use or utilisation, in accordance with the provisions of the urban planning legislation and municipal by-laws". If this is the interpretation, this would mean the prohibition of the implantation of dwellings for tourist use as long as the planning does not expressly declare compatibility.

However, the explanatory memorandum seems to clarify the intention of the Andalusian legislator, which, from what we have seen, does not seem to be clearly reflected in the articles. Thus, the explanatory memorandum states that "when there is no specific regulation of the tourist use of dwellings, the urban planning instruments in force will be applicable, in accordance with the rules of compatibility of uses that they have established.

In order to guarantee the effective implementation of these regulations in those municipalities that show a tension between residential and tourist uses which, together with other circumstances, makes it difficult for the population to access affordable housing, the local councils are empowered, exceptionally, for imperative reasons of general interest, to suspend authorisations for new dwellings for tourist use from the moment it is agreed to draw up the corresponding urban planning instrument, before its initial approval, which is the moment established by urban planning legislation for exercising this power in general, thereby avoiding the negative consequences of a possible "pull effect" in those areas in which conditions or limitations are to be established for the implementation of new dwellings for tourist use".

It seems clear that if there is no specific regulation of the tourist use of the dwelling, the provisions already included in the municipal planning will apply. Therefore, it does not seem that a prohibition of new dwellings for tourist use would apply until compatibility is expressly regulated. On the other hand, if it is stated that authorisations for new dwellings for tourist use can be suspended while the drafting of the instrument is agreed, this is acknowledging that such declarations can be submitted until then, because otherwise there would be no reason to regulate a suspension, as there would already be a prior prohibition.

New regulated entities affected by the tourism regulation

In addition to the traditional subjects and sectors to which the tourism regulation apply, the new Preliminary Draft Law on Tourism expressly introduces, as a novelty, its application to digital platforms that simply advertise tourist establishments and serve as intermediaries between the different subjects. In this way, the scope of application of the regulation is updated, including the multiple types of tourism services offered by the different web portals or applications that serve as intermediaries between the different parties.

Modification of the planning and management instruments of the tourism system

The new Preliminary Draft Law includes new plans and instruments with the aim of promoting the protection of tourism resources and infrastructures. We highlight the creation of the Observatory for Sustainable Tourism, whose purpose is to ensure the sustainable and balanced development of tourism and its impact on the municipalities; the implementation of singular planning instruments; and the creation of new registers in addition to the already existing Andalusian Tourism Register.

Updating the sanctioning regime

The Preliminary Draft Law is reinforced in its final part by strengthening its sanctioning procedure. Specifically, it is incorporated the novelty of "permanent continuous infringements", the catalogue of infringements is extended, and the associated penalties are increased, with fines of up to 600,000 euros for those infringements classified as very serious.

Should you wish to know more about the Preliminary Draft Law on Sustainable Tourism in Andalusia, the Decree-Law 1/2025 of 24 February on urgent measures in housing or any other public law issues, please do not hesitate to contact one of our experts listed below or your usual Osborne Clarke contact.