Communities of owners can prohibit the activity of tourist rentals by resolutions adopted in session by a three-fifths majoritydetermined the plenary session of the Civil Chamber of the Supreme Court, which excludes that unanimity is required.
The High Court, in two unanimous decisions, resolved the problem existing controversy between provincial courts as to whether the ban on tourist activities described in Article 5(e) of the Urban Lease Law must be adopted by a three-fifths majority or unanimously of the owners.
The Supreme Court ruled for the first time on the interpretation and application of article 17.12 of the Law on Horizontal Property, introduced by Royal Decree-Law 7/2019, of March 1, on measures urgent issues regarding housing and rental.
The Chamber starts from its case law in which declares legal the legal ban on renting accommodation for tourist use. This doctrine began in 2014 and was maintained in the recent judgments rendered on January 30.
Second, remember that the ban on the use of private elements in the horizontal property regime is legitimate and constitutional.
Third, the Civil Chamber Ininterprets for the first time Article 17.12 of the Horizontal Property Lawestablished by royal decree of March 1, 2019 relating to emergency measures relating to housing and rent.
According to this provision, the agreement of the council of owners “by which the exercise of tourist rentals is limited or conditioned, “in the terms established in the regulations of the tourist sector, whether or not it involves a modification of the constitutive title or of the “statutes”, will require the favorable vote of three-fifths of the total owners who, in turn, represent three-fifths of the participation costs.
The Supreme Court understands the expression “limit or condition” in accordance with the provisions of art. 3.1 of the Civil Code, that is to say according to the proper meaning of the words, in relation to the context, the historical and legislative context and the social reality of the time in which they must be applied, fundamentally attentive to the spirit and purpose of the standard.
Thus, he rejects that this is a case of interpretation of a statutory norm under restrictive conditions and concludes that, taking into account the grammatical and semantic criteria and its literality, the term “limit” does not exclude the prohibition.
Considers that this conclusion is confirmed taking into account the teleological criterion, the spirit and the purpose of the aforementioned royal decree, the preamble of which justifies the adoption of urgent measures in the face of the difficulties of access to rental housing due to the rent increase due, among other factors. to the growing phenomenon of tourist rental.
The high court affirms that the adoption of this ban by the reinforced majority of owners is a measurement provided to the conflicting interests, and emphasizes that, if this double majority of three-fifths is not admitted, a vote against by the owner of the apartment in which the activity is intended to be carried out would be sufficient to prevent the adoption of the agreement.
