The communities of owners are shielded from the tourist apartments. Property administrators say they are receiving a large number of queries and requests these days from neighbors to quickly convene a meeting in which to agree on the prohibition of these tourist activities. They do so with the peace of mind of knowing that they have the support of the Supreme Court, which has recently endorsed, in two rulings, that to prohibit tourist apartments the favorable vote of three-fifths of the total owners (not just those who attend) is sufficient, which, in turn, represent three-fifths of the participation fees. The high court has ruled for the first time on the reform of the Horizontal Property Law, introduced in royal decree-law 7/2019 on urgent measures regarding housing and rentals, which It established that the agreement that limits or conditions the exercise of this activity required the favorable vote of three-fifths of the total owners. At that time, many neighbors saw the doors open and proceeded to adopt the agreements. “The administrators took advantage of this article to prohibit them, not just limit them, by agreement in a meeting with this quorum and they were even registered in the majority of the registries in Spain, because the registrars understood that it was possible,” says Carmela Lavandeira, lawyer and administrator of Fincas Lavandeira, in A Coruña. But it was not entirely clear if the term limit was equivalent to prohibition, so the owners of affected tourist apartments sought protection in the courts. The controversy between the provincial audiences was evidenced in two opposite rulings: one dictated that the prohibition of tourist activities had to be adopted by a three-fifths majority and another required the unanimity of the owners. The issue was generating a problem of legal certainty. both to the communities of owners and to the collegiate property administrators. “Some communities, instead of prohibiting tourist apartments, to avoid lawsuits, were limiting them with reductions in the use of non-essential elements or increases in the community fee of 20%,” says Lavandeira. Others adopted the agreement at a meeting, but did not register it in the Property Registry while waiting for the situation to be clarified. “Not all of them could or wanted to pay the cost of the notary, registry and agency,” says Roberto Mangas, a registered property administrator in Madrid. The issue is now crystal clear and makes reaching agreements much faster. One of the Supreme Court's reasoning is that if unanimity were required, the neighbors would have their hands tied: a vote against the owner of the apartment in which the activity is intended to be carried out would be enough to prevent the adoption of the agreement. “Since the Supreme Court's position has become known, the communities have enjoyed greater legal security, which has generated an increase in consultations that will also translate into the adoption of agreements in the meetings,” comments Patricia Briones, lawyer for the Supreme Court. College of Property Administrators of Madrid. Salvador Díez, member of the General Council of Associations of Property Administrators, confirms this: «In many meetings it is discussed and approved.» It must be said that the prohibition is not retroactive, which limits the actions of residents, who only They can make community fees more expensive. On the other hand, communities whose statutes already prohibited economic activities, something unusual, do not need to vote. In these cases, no vote gives way to the installation of tourist apartments. Roberto Mangas manages 45 communities of owners. 25% want to protect themselves, or have already done so, in tourist apartments. “Now that the uncertainty has been cleared, the owners want to ban these activities. And not only in the centers, from Velázquez to Vallecas and other peripheral areas,” he emphasizes. Carmela Lavandeira is also working these days to put a stop to this activity. “Last Thursday I had a meeting in the center of A Coruña of 60 owners and those who attended unanimously agreed (44.2%) to prohibit tourist apartments in the building,” says the administrator. And he adds: “Now I will send the minutes to the owners warning them of the agreement and that if they do not object within 30 days their vote will be favorable. If anyone objects, but does not exceed 39% of the votes, I will be able to register them.” That is, “the absentee owner's vote can be counted in favor of the agreement if within 30 days following the notification he has not expressed his disagreement with the agreement,” Briones emphasizes.
From the meeting to the Registry
The way to proceed is simple. The item must be included in the agenda of the next meeting to be held, warning that the agreement must be reached by a three-fifths majority of all the owners of the building. Although for its validity it is not necessary to register it in the Property Registry, it is important and convenient “so that it is enforceable against third-party purchasers in good faith,” advises Briones. It must previously be notarized before a notary as a clause in the constitutive title or in the statutes. The cost varies depending on the number of homes, but between the notary and the registry it can range between 2,500 and 3,000 euros, Briones estimates. According to the latest data managed by the INE, last February Spain had more than 350,000 tourist apartments. Because the increase in this type of activities in recent years has caused several unwanted effects and countless coexistence problems, such as noise, bad smells or insecurity. To which is added the reduction of housing for residential rental, the increase in rental prices for primary residences and a progressive gentrification of many neighborhoods. The communities of owners most interested in prohibiting them are “those with more than 15 neighbors and They are located in tourist areas. There is also interest on the part of communities that are in the process of constitution and want to prevent future problems,” says Antonio León, spokesperson for the Association of Presidents and Administrators of Communities of Spain. Briones insists on the idea of prevention before cure. “There will be many that, although they are not affected by tourists now, want to go ahead and prohibit them to prevent the homes from being used for vacation rentals in the future.” In addition to the neighbors, the property managers also celebrate the ruling. “They see a vehicle that will allow them to face these situations with legal support,” says Enrique Sánchez, general director of IESA – Aareon Spain.