The Supreme Court (TS) has endorsed the veto of tourist apartments in communities of owners in which their statutes expressly prohibit the homes from being used to carry out an economic activity.
The magistrates have concluded that the rental of housing for tourist use is an economic activity, which is why they have ruled in favour of two communities of owners: one in San Sebastián (Basque Country) and another in Oviedo (Asturias). As things stand, they have ordered the cessation of tourist rental activity in several apartments.
In the two rulings, the Civil Chamber has clarified that in none of the cases examined is it about applying the new regulation of the Horizontal Property Law – which provides that the agreement by which it is limited or conditions the exercise of this activity will require the favourable vote of three-fifths of the total owners– but to determine whether in the community statutes there is a prohibition on allocating the apartments for tourist use.
In the case of the Oviedo building, the court has explained that if the corporate statutes are applied there is a prohibition – the validity of which is not disputed – by which professional, business, commercial or other activities cannot be carried out on the independent floors of the building, reserving its use to exclusively residential use.
Regarding the case of San Sebastián, the magistrates have emphasised that “the rental of housing for tourist use is an activity included in the statutory prohibition.” As stressed, it is an economic activity comparable to those listed in the fifth rule of the Statutes, “all of which are characterised by being uses other than housing and in which there is a commercial, professional or business component.”
In this sense, the court has recalled that the applicable tourism sector regulations “expressly” highlight the difference that contemplates the marketing of tourist stays in homes, short-term accommodations, or those offered for vacation use, with the rental of housing.
Thus, the Supreme Court has concluded that this interpretation is in accordance with the jurisprudence of the Chamber that “the limitations must be clear, precise and express.”
In his opinion, “the inclusion of tourist activity in the statutory prohibition is perfectly consistent with its letter and spirit, which is none other than prohibiting economic activity with a commercial, professional or business nature from being carried out in homes, as is the case with tourist apartments”.
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