Tourist rentals create coexistence conflicts in many buildings, and homeowners associations have looked for ways to organise or limit the activity. The Horizontal Property Act sets the required majorities, and knowing them is essential both for the owner who rents and for the association that wants to regulate.
The rule in article 17.12
Article 17.12 of the Horizontal Property Act requires the favourable vote of three fifths of all the owners who, in turn, represent three fifths of the participation shares, for the express resolution that approves, limits, conditions or prohibits tourist rentals, in the terms of the sectoral tourism rules, whether or not it changes the founding title or the statutes. A double condition must be met, of persons and of shares. The same majority allows special expense shares, or an increase in the share of common expenses of the home where the activity takes place, provided the increase is not above twenty percent.
The rule states that such resolutions have no retroactive effect. They cannot be applied to situations consolidated before, and they affect the activity from their approval.
Who each rule protects
For the association, the three-fifths majority allows regulation without unanimity. For the owner who already rented before the resolution, the absence of retroactivity is a relevant protection, although its scope should be analysed case by case.
How to adopt the resolution
- Include the matter in the agenda of the meeting notice.
- Draft the proposal clearly as to its scope.
- Work out the majorities, both of owners and of shares.
- Record the result in the minutes and notify absent owners.
- State that it has no retroactive effect.
How to react as an owner
If you rent and the association promotes a resolution, study the notice and the count of majorities. A badly adopted resolution can be challenged within the period set by the Act, and the challenge must be assessed promptly.
Negotiated solutions, with rules of use, hours and compensation for expenses, usually last longer than lawsuits. A well-thought resolution reduces conflict without destroying the value of the homes.
This article is general information on Spanish law and not personalised advice. Contact us to discuss your case.
Carlos Babot Horcajadas
Lawyer admitted in Málaga, no. 10.971. Partner at Babot Aranguren Abogados. More about the author.