At the moment, there is a great controversy in the communities of owners due to the fact that in many communities of neighbors the prohibition of tourist rental is being carried out. According to the Horizontal Property Law, limiting or conditioning the tourist rental activity will require the favorable vote of three fifths of the total number of owners.
The problem arises from the literal wording of the law, which speaks of «limiting or conditioning» and some courts have considered this to be the same as prohibiting, but others interpret it to be something different.
In any case, the law itself expressly states that these agreements will not have retroactive effects, therefore, it is very clear that, by legal mandate, the agreement adopted by the Board of owners limiting the tourist rental cannot be applied to those owners who already have authorisation for tourist rental of their property, and will only bind the owners who, after the agreement, want to use their property for tourist rental.
A legal debate on the prohibition of tourist rental in Spain: What happens to tourist licenses when the community prohibits rentals?
What the regulation does not make so clear is what will happen to those owners who are in the middle of the process of managing the tourist licence at the time the prohibition of tourist rental is agreed by the community.
This is a question that will have to be decided by the courts, but given that in Spanish law the general rule is the non-retroactivity of the law, especially the least favourable and those which limit citizens’ rights, the lawyers at Imont Legal understand that it should be understood that the agreement of the community prohibiting the tourist rental should not affect those owners who have initiated the process.
In addition, in order not to cause a prejudice to the new purchasers of the properties, the agreement of the community to prohibit the tourist rental should be registered in the Land Registry.