The New Law for Holiday Rentals

Revised according to Decree 31/2024, dated 29th January.
Rentals, Holiday Homes

Holiday Rentals Law in Andalusia (updated 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.:

Which prew properties DO NOT have to be registered? Properties rented for periods longer than 2 months to the same person and those not regularly offered for rent are exempt. Thus, if you’re leasing your apartment long-term, this regulation won’t impact you. Additionally, if your property is on rural land or you have 3 or more properties for rent, a separate procedure must be followed.(“Apartamentos Turísticos/Touristic apartments in the first case and “Vivienda Turistica de Alojamiento Rural”/Touristic home on rural land  in the later).

Which properties have to be registered? Properties located on residential land that are consistently rented out at a fixed price for periods shorter than 2 months fall under this regulation. 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 lead to the cancellation of the registration (license) should authorities conduct an inspection afterward.

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. However, some Land Registries are not yet issuing this type of certificate, or at least not in the required terms.

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.

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 may allow new owners to maintain property use.

3. 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”.

4. 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, particularly significant as it coincides with the peak holiday season after August 22nd, 2024, the deadline for adopting the new requirements.
– 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).

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.

6. And we have left the most important one, in my opinion,  for the end: The registered owner, 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. This category of holiday accommodation entails requirements that are nearly impossible to meet in most cases, such as independent access.

If you want to read about the TAX implications of this new law please click HERE.

If you want to REQUEST OUR SERVICE please click HERE

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