Holiday Rentals Law in Andalusia (updated September 2024)

On May 12th, 2016, Andalucia introduced a new regulation governing holiday rentals (known as Viviendas de Uso Turístico in Spanish). Since then, property owners who regularly rent out their properties to tourists for a fee must comply with this law. They are mandated to register their property as a “Vivienda Turística” (Touristic property) in the specialized registry set up by the regional government. Failure to register will classify the apartment as “clandestine,” potentially resulting in fines of up to €18,000 solely for non-compliance. This specific regulation has been recently updated by Decree 31/2024 of 29th of January, with significant changes.

Before we get into the alterations introduced by the new decree, let’s make clear which types of rentals are impacted by this specific regulation:  Properties located on residential land that are consistently rented out at a price for periods shorter than 2 months fall. This includes properties rented out entirely or by rooms, although in the latter case, the owner must reside on the premises. The crucial factor here is the regularity of rentals. The Tourism department of the Regional Government defines a property as habitually rented when it is promoted through tourism channels like travel agencies or online platforms. It’s essential to note that even if you don’t utilize these channels for advertising but engage in habitual renting, registration is still mandatory.

On January 29, 2024, the Andalusian Government enacted Decree 31/2024, introducing several adjustments pertaining to tourist accommodations, apartments, and hotel establishments in the Autonomous Community of Andalusia. This regulation, published in the BOJA on February 2nd, became effective on February 22, 2024.

Regarding specifically tourist accommodations (now called VUT, instead of VFT, for Viviendas de Uso Turístico), the modifications encompass the inclusion of new requirements and the updating of existing ones. The most notable innovations for dwellins for tourist purposes (VUT) are as follows:

1. The requirement to present a First Occupation License (F.O.L.) alongside the responsible declaration has been  eliminated. Instead, the applicant for the license must declare that the dwelling complies with urban planning regulations. This can be advantageous for many properties that, for various reasons, do not possess an F.O.L. However, it is crucial to ensure that the property genuinely conforms to town planning regulations, and we strongly advise obtaining a certificate issued by an architect to confirm this compliance. In connection with this matter, I believe it’s crucial to mention provision 9.2 from the recent decree due to its relevance. The provision is as follows: “The verification by the Tourism Administration of the inaccuracy or essential falsehood in any data, statement, or document included in the responsible declaration, determining that the tourist accommodation does not meet the conditions for its registration as such, or that such conditions have ceased to be met, as well as the lack of effective provision of the service under the terms of article 3.1 or the absence of licenses or authorizations required by specific sectoral regulations, especially in urban planning matters or regulating land use, will result in the cancellation of the registration of the accommodation in the Andalusian Tourism Registry, following a hearing of the interested parties.In light of this provision, I want to highlight two key points: 1) Registering a property as a holiday home solely to shield it from potential future prohibitions, without the genuine intent to rent it out as such, could result in the cancellation of the registration, 2) Although possessing the First Occupation License is not obligatory at the time of property registration, its absence could potentially lead to the cancellation of the registration (license) should authorities conduct an inspection afterward and conclude that the lack of this license means that the property doesn’t complies with urban planning regulations.

2. Limitations for VUTs in Community of Property Owners: Holiday rentals are not permitted in buildings whose community of property owners’ statutes explicitly prohibit them. Furthermore, although the Decree doesn’t specifically mention it, when submitting the “Responsible Declaration” (application for the license), it’s mandatory to provide a Certification from the Land Registry stating that the Community of Property Owners hasn’t banned VUTs.

It’s important to note that according to Article 17.12 of the Horizontal Property Law, any agreement limiting or conditioning holiday rentals, in accordance with the terms set by tourism sector regulations, will require the favorable vote of three fifths of the total owners, representing three fifths of the participation shares. Similarly, this same majority will be needed for agreements establishing special expense quotas or increasing participation in common expenses for housing where such activity is conducted, provided these modifications don’t exceed a 20% increase. These agreements won’t have retroactive effects.

The extent of the non-retroactivity is unclear because some argue that prior registration as a VUT only protects the current owner, while others believe that upon sale, the new owner could still continue the tourist use by processing the necessary license ownership update with the Junta de Andalucia. We will have to wait to see how this is interpretated by authorities, community administrators, and in the last instance by the judges. However, in some community meeting minutes, it’s stated that the prohibition won’t affect properties already registered. The use of the word “properties” instead of “owners” suggests that the community will allow new owners to maintain property use.

3. Update of technical and habitability requirements:

– One of the most notable changes is the implementation of a minimum surface area requirement of 14 square meters per guest. This adjustment will render studios with less than 28 square meters illegal for rental to two people.
– Number of bathrooms: two if the number of sleeping places exceeds five, and three bathrooms if the number of sleeping places exceeds eight.
– Refrigeration and heating.
– 24-hour telephone assistance.
– First aid kit.
– Installation of some type of smoke detectors in the kitchen area or a fire extinguisher.
– Additionally, there is a new annex outlining requirements concerning household goods and furniture for tourist accommodations. You can find detailed information in the annex on pages 9 and 10 of Decree 31/2024, dated January 29th, published in the BOJA (accesible here)

VUTs already licensed as such, but not meeting habitability requirements, will be given a one-year grace period to comply with them. For other requirements, like reporting rental periods or guest numbers, the deadline is six months (until 22nd August 2024). If you have not taken the necessary measures to comply with the new requirements, you should do so as soon as possible.

4. Requirement to specify activity periods in the responsible declaration: Tourist accommodations must clearly state the periods during which they are operational, preventing their commercialization outside of these specified times. This will be especially significant in instances where the Community of Property Owners has sanctioned increased fees for this type of property, as they will only be applicable during the periods when the property is “active”. If you don’t inform the authorities of the specific activity period, it will be understood that your property is dedicated to holiday rentals permanently.

5. Municipalities’ capacity to limit the number of VUT’s: Local Town Halls may impose restrictions on the maximum number of tourist accommodations per building, sector, period, or area, always in the public interest and in accordance with the guidelines established by the Supreme Court in its most recent jurisprudence. This has already happened in the towns of Malaga and Fuengirola, as both Town Halls have prohibited VUTs if they don’t have an independent access from the street, which basically means that only detached houses or ground floor apartments can be registered now (since February 22, 2024).

6. And we have left the most important one, in my opinion,  for the end: The license’s holder, and the person who signs the responsible declaration for registering the tourist accommodation, must be the individual or company operating the property. This refers to the entity responsible for maintaining listings on tourism platforms, handling check-in and check-out procedures, guest registration, etc. Particularly on the Costa del Sol, where the majority of these property owners are non-resident foreigners, this role is often fulfilled by specialised real estate agents. This new condition brings about an unexpected effect that will pose a significant problem for agencies engaged in this activity. This is because it’s common for the same agency to manage more than two properties in the same complex. As seen earlier, when a single person or company  operates more than two properties in the same complex, they are obliged to register as Tourist Apartments (“Apartamento Turístico”). This category of holiday accommodation entails requirements that are nearly impossible to meet in most cases.

And very important: If you own an apartment, duly registered as holiday home,  that is being managed as a holiday rental by a third party, the person or company managing the property must submit a communication to the Tourism Board, identifying themselves as the party responsible for the activity. They are also required to inform the authorities about the periods of rental activity. This should have been done by the 22nd of August 2024, so if your holiday rentals are being managed by a third party, please contact them immediately to arrange this and comply with the new regulations. When submitting the communication to the authorities, the managing company must provide a copy of the contract signed with the owner, detailing the terms of the agreement between them

Finally, another consequence, particularly for the individuals or companies managing the rental activity (usually estate agencies), is that local Town Halls are beginning to issue a new type of Rubbish Collection bill specifically for holiday homes, with amounts around 300 Euros per year (based on the cadastral value of the property). While these companies may request the owner to cover this cost, the authorities will hold the managing companies responsible for payment.

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