In recent years several autonomous communities in Spain have been forced to regulate the operation of vacational apartments and holiday accommodations due to pressure from hotel, campsite and rural accommodation managers. These establishments complain that short-term rental housing does not carry the same tax obligations and burdens as the sectors that are already regulated.
In Murcia there are a series of Decrees and Laws that regulate tourist apartments, however it is not clear whether housing offered by individuals through internet portals and other advertising media can be included under this regulation.
These laws are: Decree 75/2005 regulating tourist apartments and holiday accommodations, the Tourism Law of the Region of Murcia 2013 and a Law of February 2017 on urgent measures for the reactivation of business activity. There is also a draft decree that aims to regulate the housing for vacational use in the Region of Murcia.
After careful analysis by the lawyers of Imont Legal Services, we believe that the current regulation on the matter applicable in the Region of Murcia does not obligate private owners to register the rental of their homes, done through virtual portals, such as AirBnb, Howeaway, etc, for vacation purposes.
Said conclusion is based on the following observations:
Firstly, the very legal definition of apartments and holiday accommodations provided by Decree 75/2005 of 24 June refers to the business or professional nature in the transfer of these homes, which by our understanding leads us to exclude from its scope the individual who offers his or her home on Internet portals or other forms of advertising. Indeed, the Decree of 2005 defines the tourist apartment as a block of apartments or set of villas, offered for rent on a regular basis and equipped with services, and defines holiday accommodation as separate units of apartments, bungalows, villas, chalets and similar dwellings offered for rent by the operating companies, which are natural or legal persons who are habitually and professionally engaged in the tourist transfer of these dwellings. In both cases, this refers to a business or professional nature in the transfer of use for holiday purposes.
These operating companies have the obligation to notify the regional Department of Tourism in advance of the commencement of their activity. The apartments will be classified as luxury, first, second or third class and the existence of an office open to the public, inspection book, claim forms, liability insurance, registration book, identification plate, safe and a person in charge will be obligatory.
For many years this was the only existing regulation on the subject in the Region of Murcia, but in 2013 the Law of Tourism of the Region of Murcia 12/2013, was published. According to its preamble, said legislation was born out of the collaboration between tourism companies and the regional public administration. This law clarifies the terms tourism companies, tourist accommodations and tourist apartments; in addition to establishing financial sanctions for the non-compliance with the law.
The aforementioned law defines tourism companies as a duly accredited natural or legal person that is engaged in the performance of a tourist activity or the rendering of any tourist service in a professional, habitual and price-based manner. These tourism companies must submit the Responsible Declaration of Tourist Classification and be included in the Registry of Companies and Tourist Activities of the Region of Murcia, display information on the services offered, have claim forms, issue invoices or similar and also take out civil liability insurance.
On the other hand, tourist accommodations are, according to the same law, establishments open to the general public, usually dedicated to providing temporary accommodation by means of price, with or without complementary services. This definition encompasses hotels, campsites, tourist apartments, rural accommodation, hostels, among others. Tourist apartments on the other hand are defined as accommodation units offered by companies for rent on a regular basis and equipped with furniture, facilities, services and equipment for immediate temporary occupation for holiday or leisure purposes, meeting the requirements that have been determined.
Again, we can observe that the notions provided by the law, both for tourism companies and tourist apartments, and especially the entrepreneurial and professional character mentioned above, would lead us to exclude from their scope the private individuals who wish to rent their housing for tourist use. Said individuals are therefore inherently excluded from the financial sanctions regime established by law.
Indeed, the Tourism Law of the Region of Murcia defines as a serious infringement to operate as a tourism company without being registered, and establishes a fine of between 1,000 and 10,000 euros as a penalty. In determining the amount of the fine, the pertinent body will take into consideration a wide array of circumstances such as the profit obtained, the financial situation of the offender, the recurrence, the remediation and even the voluntary reparation of damages.
Recently, in February 2017, a new legal regulation has been introduced that affects this matter, Law 2/2017, of 13 February, on urgent measures for the reactivation of business activity and employment through liberalization and the elimination of bureaucratic burdens, which has modified two articles of the Tourism Law of the Region of Murcia with the objective of eliminating the reference to a necessary professional character of the notions of tourism and tourism businesses.
This subtle modification is being used by the regional Department of Tourism to require individuals to declare the activity and the inscription in the Registry of Tourist Activities and Enterprises of the Region of Murcia, however there are serious legal doubts about whether these modifications are sufficient or, as this office understands, it is necessary to make a more profound modification of the matter to apply the Tourism Law to rental housing for holiday purposes by its owners.
In support of this theory we have to say that, at present, there is a draft decree to regulate tourist use of housing in the Region of Murcia, which expressly does establish the obligation to register those owners or managers who offer homes for holiday use through Internet portals or other forms of commercial offer. These dwellings will be classified in a single category and may be operated by the owner or by a management company but, in any case, it will be necessary to register and include the registration number in all advertising, in addition to having a civil liability insurance of at least 500,000 euros, as well as the existence of a responsible person whose number will be given to the users to ensure maintenance, control of entry and exit of users, as well as the existence of claim forms both in Spanish and English. This draft decree subjects these dwellings to the disciplinary regime of the Tourism Law, but gives a period of six months for the owners of the dwellings to update themselves in compliance with the law.
By virtue of all these regulations, we understand that until the Draft Decree regulating tourist homes in the region of Murcia is approved, individuals who offer their homes on the Internet are not required to register and comply with the specific requirements of the current rules on tourist apartments. Nevertheless, being clear the objective of the Murcia regional Government to regularize and control the renting of these homes, we think it is convenient to bring forward what, sooner or later, will be mandatory for all owners of these homes and, based on this, we make our services available to those customers who own a home in the Region of Murcia, offer it for vacation rental and wish to proceed to their registration in the Register of Companies and Tourist Activities of the Region of Murcia.