As Isabel already owned her own house, she planned to rent out the studio she had inherited from her parents. It seemed like the perfect plan to earn a little extra money. She quickly posted the property on several platforms, a priori it met the requirements for hundreds of tourists to stay there in the summer.
What could possibly go wrong? She quickly realised that it wasn’t as easy as it seemed. Faults, noise, parties, complaints from her neighbours and, as if that wasn’t enough, a neighbour reported her for not having the property registered with the tourist office.
It had got out of control. Nobody had told Isabel what she had to do to declare her flat as a legal, tourist property to be rented out. So, in this article, we tell you when a tourist property is legal or illegal and what steps to take. We also explain what the law says about whether it’s possible to ban them in communities.
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When is a tourist apartment legal?
Local municipal regulations
In order for a flat to be declared a tourist flat and for you to be able to rent it out legally, you must, first of all, check whether it falls under local municipal regulations, because even if an Autonomous Community has authorised a property as a tourist flat, the local council might forbid it. Some cities, faced by the massive growth in numbers of these types of properties, have forbidden them in some specific districts or areas.
You may well ask: How can a tourist flat be authorised by Autonomous Community but forbidden by the local council? There are two possible reasons:
- The Autonomous Community does not cross-reference data, i.e. it doesn’t know that the flat is in an area where tourist properties are forbidden.
- Or this regulation was made after the authorisation from the Autonomous Community was granted.
In the case of Madrid, the Autonomous Community allows tourist rental with just an entry in the registry. However, the City Council has trialled a plan to regulate tourist flats and in order to obtain a licence, the rental flat must have separate access from the other neighbours in the property. Therefore, properties that are being rented out that have a registry code from the Autonomous Community but do not have a licence from the City Council are infringing the municipal regulations of Madrid.
Register it and disclose the activity
Once you understand this and have complied with the regulations, you must register the flat and disclose your activity to the council or the tourism department of your Autonomous Community. Without the relevant authorisation, the flat will be considered to be illegal and you will not be allowed to list it on any advertising portal.
The following requirements will be taken into account when granting your licence:
- Having a civil liability insurance that covers damage to third parties caused by the use and enjoyment of the property.
- Having complaint forms available.
- Having a contact telephone number 24 hours a day to deal with any emergency.
- The property must have heating and air conditioning.
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How do I register a property?
If you are the owner of the property, you must submit the following to the tourist board in your Autonomous Community:
- A declaration of responsibility with your identification details and those of the property, also confirmation that it has a certificate of habitability and that it meets the requirements of the current legislation in each Autonomous Community.
- A favourable urban compatibility report issued by the Council, which includes a code (CSV) which makes it possible to check the integrity and authenticity of electronic documents.
Once this documentation has been submitted, the property is entered into the registry of tourist properties and will be available to be rented for tourist use.
How do I check a tourist registry?
Should you have any problems while you are staying in a tourist flat, you can check its registration number in the corresponding registry of the autonomous community, and feel confident that you are completely protected by the law.
Some of the bodies that regulate the properties for tourist use have a directory where you can check the legal tourist establishments in their territory. This is the case in:
If there is not a similar public directory in your community, you can always ask directly at the regional tourist office whether a particular establishment is legal or not.
Can a community prohibit the renting of flats for tourist use?
Communities of property owners cannot prohibit holiday rentals directly, but they can limit or impose conditions on them. In the words of Judge Vicente Magro in an article published in the newspaper Diario Información, “communities of property owners have to approve a holiday rental regulation that establishes conditions or limitations and whoever does not comply with them, may face legal action for cessation, as set out in Article 7.2 of the HPL. The solution is not to offer a “blanket” ban for all owners who want to ban it. But, rather, to set conditions, and if they are not met, to impose the corresponding ban with just cause”.
Magro, in his Practical Guide to Urban Leases and Holiday Rentals, proposes an internal regulation that applies to any type of rental so that communities have more legal certainty.
If tenants cause a nuisance, is the landlord responsible?
When the tenants are temporary, nothing can be said to them. You can’t bring a civil claim against them. The claim will be directed against the landlord. They would be in breach of the regulations and can be banned from renting out the property.
How to restrict tourist flats in a community of property owners
The Horizontal Property Law provides for prohibiting or restricting tourist rental.
If the community of property owners wants to restrict tourist rentals, this must be established in the Foundational Deed or the Statutes. Failing this, they can only be limited by a resolution passed by the community.
To approve a limitation on tourist rentals in the community, 3/5 of all the owners representing 3/5 of the ownership shares must vote for it. The meeting has to reach a simple majority, half plus one, and have a majority of members present. There is then a 30-day wait, and if no one objects, the community will attempt to obtain the approval of three-fifths of its members. This has changed, previously it required the unanimous vote of all the owners.
These internal regulations propose a series of rules and limitations that holiday rentals must comply with. If this isn’t complied with, legal action for cessation will be sought, as set out in Article 7.2 of the HPL. In no case can it be banned outright.
Whether it is restricted by the community or not, in order to use a property for tourist rental you must have authorisation from the corresponding regional administration.
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How to report illegal tourist apartments
When neither the Statutes nor a resolution prohibits tourist rentals
If tourist rentals are not prohibited in the Statutes and it has not been possible to amend them, any resident who becomes aware of an illegal tourist apartment can report it to the council or the tourist office in their Autonomous Community. These bodies will then initiate a procedure to investigate and, where appropriate, sanction, which could involve closing the activity down and imposing an administrative fine on the owner.
When the Statutes or a resolution do restrict tourist rentals.
If the community has established certain limitations on tourist rentals in the building and an owner breaches them, the community may bring legal action for the cessation of the activity, as set out in Article 7.2 of the HPL.