Tourist apartments and the approval of community agreements that prohibit said activity in the building.
An important part of home, and second home purchasers, consider the profitability of the investment, using the property for holiday rental.
Before the purchase, it is important to assess the possibilities of using the home for this purpose in the future, for example, requesting a copy of the first occupation license or consulting with an architect if the license does not exist, the possibility of obtaining it. It is also essential to know if there are agreements by the community that prevent holiday rentals.
Although the community cannot prohibit the activity for the tourist apartments that are registered in the corresponding registry before the approval of the prohibition in the assembly, (since it cannot have retroactive effects), it can limit that in the future others can used for tourist rental.
According to article 17.12 of the Horizontal Property Law: “the agreement that limits or conditions the exercise of the activity (…) will require the favorable vote of three-fifths of the total number of owners”.
What would happen if the ban had been approved by the assembly?
An owner who was faced with such a case challenged the community agreement in which, by a majority of 3/5, the prohibition was approved.
The Provincial Court of Córdoba, Section 1, by Judgment 690/2022 dated July 12th, 2022, confirmed the judgment of the Court that upheld the claim for annulment of the agreement prohibiting the establishment of tourist apartments.
The Chamber considers that art. 17.12 LPH (Horizontal Property Law) when referring to the fact that “the agreement that limits or conditions the exercise of the activity… will require the favorable vote of three-fifths of the total number of owners”, this does not include the possibility of prohibiting the activity. For such a prohibition, the rule of unanimity would apply. Therefore, all the owners would have to vote in favor of its prohibition. Restrictive interpretation of the limitations on property rights. The art. 17.6 LPH comes to exclude an extensive interpretation of the other assumptions that require either majority or qualified majority.
The Court understands that it cannot be denied that in the horizontal property regime there may be prohibited activities, but they must be stated as prohibited in the constitutive title, and in said case the agreement must be adopted unanimously.
How should the community proceed if the ban agreement is finally approved?
A certificate of said agreement must be issued, to proceed with its registration in the Property Registry with the aim that future purchasers of apartments in the building are aware of the existing limitation and are bound by it.
What happens if an owner, despite the prohibition, carries out an activity that is not allowed?
The president of the community, on his own initiative or that of any of the owners or occupants, will require whoever carries out the activities prohibited by this section to immediately cease them, under penalty of initiating the appropriate legal actions.
If the offender persists in his conduct, the President, with the prior authorization of the Board of Owners, duly convened for this purpose, may file an injunction against him which, in matters not expressly provided for in this article, will be substantiated through ordinary proceedings.
Can the community fee be raised for those owners who are dedicated to tourist rental?
If, when in the Homeowners’ Meeting, by a majority of 3/5 parts, said increase is approved (which can be up to 20%), however, said agreement is not retroactive, so it cannot be applied to homes that were already carrying out the activity. In this sense, the Provincial Court of Guipúzcoa has issued Judgment No. 1280/2021, indicating that said agreement should not be applied to those homes that had obtained the license to carry out the activity before the Community of Owners approved the agreement of the increase of fees.