Attention all Holiday Home Landlords! New law on community votes and holiday rentals

Estepona Plaza de las Flores

Under a new law passed in December 2018 (Real Decreto Ley 21/2018), voting by community owners no longer requires unanimity, but merely a majority, to enforce a ban on properties within a community from being used as holiday rentals. Prior to this, the vote indeed had to be unanimous.

According to local lawyer, Adolfo Martos Gross, “a favourable vote of three fifths of the total of the owners who, in turn, represent three fifths of the participation quotas” is needed to approve a ban on holiday rentals, regulated by the Andalusian Touristic Rentals Decree.

However, as he points out, the ruling will not apply retroactively. In other words, the changes do not affect those properties that are already being rented out as short term lets and have a holiday rental licence in place. Owners who purchased a property before the law was passed, will, however, be able to argue that when they bought into the community the law did not exist and therefore they should be allowed to rent the property out if they so choose—a point that is likely to cause much controversy in court.

Also, this status cannot be inherited, so while the law is pragmatic about those who are already actively and legally renting out their homes, any new owners who purchase the property from them will not automatically be able to continue renting out the house, and any community rules against it will henceforth apply to the home’s new owners.

However, it is also possible for the community to change course if a majority of homeowners votes to reinstate the practice of holiday rentals within an urbanisation—and vice versa. Again, instead of an absolutely unanimous vote, it will simply require a clear majority as described above.

A majority vote decides

The community of owners also has the power to set limitations or conditions upon holiday rental activities, such as obligating the owners in question to pay higher community fees or a surcharge to the community (not exceeding 20%).

Adolfo also points out that while this reform was long awaited by those communities that had complained of excessive occupation by tourists disrupting community life and overloading the use of common areas, such as swimming pools and gardens, caution needs to be taken, as this is a restrictive measure in terms of property rights. Important to note also is that the 3/5 rule is not applicable to rentals falling outside the scope of the Andalusian regulation i.e. any owner may still rent his apartment out as long as it is for a period of more than two months, or it is not offered on the market through the usual channels (real estate agencies, Airbnb etc.)

Ambiguities and questions

There are, however, a number of serious questions surrounding the new law that the legislators have not yet answered in detail. For example, does the prohibition relate to the purchaser of a home that was already registered as a holiday rental property before the purchase?

 

Adam Neale | May, 2019



New Listing Marbella Golden Mile, Breathtaking villa offering the epitome of luxurious living for sale in Rocio de Nagüeles, Marbella Golden Mile

Breathtaking villa offering the epitome of luxurious living for sale in Rocio de Nagüeles, Marbella Golden Mile

Ref. TMXV0739

  • 6 beds
  • 6 baths
  • 1.201 m² built
  • 3.759 m² plot
  • 295 m² terrace

Tucked away in the ultra-exclusive Rocio de Nagüeles neighbourhood of the Marbella Golden Mile, this magnificent Mediterranean villa offers comfort and flexibility. The cleverly designed layout boasts plenty...

5,500,000 €
New
Development
Casares, Gorgeous off plan ground floor apartment with private garden for sale in Las Terrazas de Cortesín Bon Air, Casares

Gorgeous off plan ground floor apartment with private garden for sale in Las Terrazas de Cortesín Bon Air, Casares

Ref. TMNA1243

  • 2 beds
  • 2 baths
  • 191 m² built
  • 52 m² terrace

Located in the exclusive urbanisation of Finca Cortesín in Casares, Las Terrazas de Cortesín Bon Air is a small development of just 51 apartments of 2 and 3 bedrooms distributed over 6 blocks. The...

355,000 €
New
Development
Casares, Beautiful off-plan first-floor apartment next to Europe´s best golf resort for sale in Las Terrazas de Cortesín Bon Air, Casares

Beautiful off-plan first-floor apartment next to Europe´s best golf resort for sale in Las Terrazas de Cortesín Bon Air, Casares

Ref. TMNA1244

  • 2 beds
  • 2 baths
  • 172 m² built
  • 35 m² terrace

Situated in the ultra-exclusive urbanisation of Finca Cortesín in Casares, Las Terrazas de Cortesín Bon Air is a boutique development of 51 apartments of 2 and 3 bedrooms distributed over 6 blocks. The...

320,000 €
New
Development
Casares, Brand new luxury penthouse 5 minutes drive from the beach for sale in Las Terrazas de Cortesín Bon Air, Casares

Brand new luxury penthouse 5 minutes drive from the beach for sale in Las Terrazas de Cortesín Bon Air, Casares

Ref. TMNA1245

  • 3 beds
  • 2 baths
  • 235 m² built
  • 62 m² terrace

Las Terrazas de Cortesín Bon Air is a contemporary development of 51 apartments and penthouses of 2 and 3 bedrooms distributed over 6 blocks. Situated in the sought after urbanisation of Finca Cortesín in...

690,000 €
New Listing Benahavis, Traditional luxury villa with guest apartment and sea views in a gorgeous wooded setting for sale in El Madroñal, Benahavis

Traditional luxury villa with guest apartment and sea views in a gorgeous wooded setting for sale in El Madroñal, Benahavis

Ref. TMXV1726

  • 5 beds
  • 5 baths
  • 423 m² built
  • 5.000 m² plot

This classic style home immersed in rustic elegance is situated in ultra-exclusive El Madroñal, Benahavis. The property boasts a country-style setting on superbly landscaped grounds framed by natural...

2,475,000 €
New Listing Estepona, Comfortable 2 bedroom apartment for sale in Estepona

Comfortable 2 bedroom apartment for sale in Estepona

Ref. TMRA11272

  • 2 beds
  • 1 bath
  • 75 m² built
  • 8 m² terrace

This 2 bedroom 1 bathroom unit is located in the community of Balcones del Mar, in the central part of Estepona. The apartment is comprised of a living room with adjacent kitchen and direct access to its own...

225,000 €
New Listing Estepona, Cute 1 bedroom loft-style apartment for sale in Seghers, Estepona

Cute 1 bedroom loft-style apartment for sale in Seghers, Estepona

Ref. TMRA11273

  • 1 bed
  • 1 bath
  • 70 m² built
  • 8 m² terrace

This charming 1 bedroom elevated ground floor apartment is comprised of a kitchen with adjacent full bathroom, and the open plan living room area that gives access to the private terrace. From there you can...

105,000 €
New
Development
Estepona, One-of-a-kind new build luxury villa with far-reaching sea views for sale in Paraiso Medio, Estepona

One-of-a-kind new build luxury villa with far-reaching sea views for sale in Paraiso Medio, Estepona

Ref. TMNV1031

  • 4 beds
  • 4 baths
  • 2.100 m² plot
  • 210 m² terrace

This brand new contemporary villa in prime Paraiso Medio sits on a large 2.100 m² plot overlooking the coast and Mediterranean. No expense was spared in designing this property that takes advantage of the...

3,000,000 €

Elegant luxury villa with sizeable viewing roof terrace for sale in the Golf Valley, Las Brisas, Nueva Andalucia, Marbella

Ref. TMXV08169

  • 4 beds
  • 3 baths
  • 280 m² built
  • 930 m² plot
  • 105 m² terrace

Re-Imagined contemporary Mediterranean property in the heart of the Golf Valley, this stunning home has character, charm and elegance. A stylish architectural offering boasting the finest calibre of living...

1,695,000 €

Mediterranean style 4 bedroom villa for sale in Los Flamingos, Benahavis

Ref. TMRV18196

  • 4 beds
  • 3 baths
  • 368 m² built
  • 4.240 m² plot

This gorgeous and sunny home is set on a plot of 4200m2 and enjoys panoramic views of the mountains and La Concha and is surrounded by a neatly kept garden with mature trees. As you pass the gates to the...

1,795,000 €