Spanish Supreme Court upholds ban on tourist apartments in residential buildings

The Civil Chamber of the Spanish Supreme Court has issued two landmark rulings affirming the right of homeowners’ associations to prohibit the use of properties for economic activities, specifically targeting ‘tourist apartments’. This decision underscores the Court’s view that short-term rentals for tourism purposes are indeed economic activities.

The rulings clarify that these cases do not apply the new regulations of the Horizontal Property Law, which requires a three-fifths majority vote of owners to limit or condition such activities. Instead, they focus on whether community statutes explicitly forbid the use of apartments for tourist purposes.

In one of the judgments, the Court sided with the homeowners’ association of the “La Jirafa Élite” building in Oviedo. It ordered the cessation of tourist rental activities in two apartments within this 20-story building, which features separate entrances for residences and commercial premises.

The Court found that a statutory prohibition, which was not disputed, exists in the building’s bylaws. These bylaws reserve apartments for strictly residential use and prohibit professional, business, commercial, or trade activities.

The Court emphasized that the activities conducted by the defendant in the “La Jirafa Élite” building were of a commercial and entrepreneurial nature, operated by a mercantile company. Therefore, it upheld the plaintiff’s argument that there is an inscribed statutory prohibition against using these properties as tourist accommodations, governed by the legal framework of the Asturias regulations on holiday and tourist homes.

A similar conclusion was reached in a second case involving an apartment building in San Sebastián. Some homeowners sued their community to annul a prohibition, set by the building’s promoter in the sales contracts, against any economic activity (like offices, clinics, etc.) unless unanimously authorized by the sub-community.

The Court noted that based on regional tourism legislation and applicable municipal ordinances, renting out apartments for tourism or vacation purposes is an economic activity. This involves certain requirements and conditions, including service provision and adherence to obligations related to marketing tourist accommodations.

The ruling asserts that this interpretation aligns with the Court’s Case Law which mandates that limitations in statutes be clear, precise, and explicit. The inclusion of tourist activities in these prohibitions is consistent with the spirit and letter of these laws, aiming to prevent commercial, professional, or business activities in residential apartments, as is the case with tourist apartments.