New law regarding short-term rentals
NEW LAW REGARDING SHORT-TERM RENTALS
I. GENERAL PROVISIONS
Presidency of the Generalitat
DECREE LAW 9/2024, of 2 August, of the Consell, amending the regulations governing tourist housing.
PREÁMBULO I
The Generalitat, by virtue of article 49.1. 12 of the Statute of Autonomy of the Valencian Community, has exclusive competence in matters of tourism, which includes the promotion and management of tourism in its territorial area. Within the scope of this competence and in the exercise of legislative power, Law 15/2018, of 7 June, of the Generalitat, on tourism, leisure and hospitality of the Valencian Community, was approved, which regulates tourist activity, understood as that aimed at providing accommodation, catering, intermediation, information, assistance, entertainment and enjoyment of tourist resources and products of the Valencian Community. The law regulates tourist accommodation, contemplating a classification of the offer and establishing a series of obligations aimed at guaranteeing its quality, accessibility, sustainability, landscape integration and safety.
Decree 10/2021, of 22 January, of the Consell, approving the Regulation regulating tourist accommodation in the Valencian Community, on the one hand, developed the Law and, on the other, unified in one regulation the dispersion of decrees that regulated the modalities of accommodation, thus facilitating access to users and agents of the sector to the administrative regime applicable to each of these modalities. Chapter III defines and regulates tourist housing (STV).
The situation of the municipalities and the need to establish a clear and differentiated framework for tourist housing raises the urgent need for a modification of the specific regulation of this type of housing to provide them with legal certainty both for users and for local entities, owners and management companies and the owners of such housing. that are affected by the regulation that is made.
The recent publication of the European Union (EU) Regulation 2024/1028 of the European Parliament and of the Council of 11 April 2024 on the collection and exchange of data relating to short-term accommodation rental services, which establishes a single set of information rules for platforms and facilitates registration procedures for hosts, should also be considered in the regulatory framework for this type of tourism. responding to one of the main challenges in this area, reliable information on these services. Its entry into force will improve the authorities' access to and quality data on the provision of short-term accommodation rental services, which in turn should enable the authorities to design and implement policies on such services effectively.
II
Tourism is a strategic sector in the Valencian Community, with figures that have reached 16% of the Gross Domestic Product in 2023, being the autonomous community that is leading the growth in tourism revenues in 2024. This quantitative and qualitative importance justifies the enormous importance of attending to its orderly development, due to its direct impact on the rest of the economic sectors and its relevant repercussions in the social, labour and environmental spheres.
The beginning of 2024 has witnessed a new growth in tourism, a positive trend after the pandemic, and an increase in overnight stays and homes for tourist use, in the main Spanish tourist destinations (the increase in places in the 25 main cities is 19.7%, reaching 376,000 beds) exceeding pre-pandemic levels.
It should be noted the exponential increase in the number of homes for tourist use according to the Tourism Registry of the Valencian Community, which exceeds the figure of 100,000 (July 2024), which has meant an increase of 160.40% (period 2015-2023), figures that in 2024 reveal very significant increases in such a short space of time, since more than 9,000 homes for tourist use have been registered in this period.
To this context must be added the record numbers of foreign tourist arrivals, of 10.4 million in 2023 to the Valencian Community, as well as the constant media exposure of the consequences of the phenomenon, which force the adoption of urgent measures to limit the different interests at stake.
The increase in housing that operates for tourist use illegally contributes significantly to the underground economy. These undeclared properties not only evade taxes and regulations, but also distort the real estate market, affecting the tourism sector in general that operates in the market following current regulations. It is essential to take measures to regularise this situation and ensure fair and transparent competition.
In addition, the increase in illegal tourist housing can cause conflicts of coexistence with local residents. In this regard, it is also necessary to establish urgent, clear and effective regulations to protect the rights and harmony of those who live in these areas.
The challenge for tourism today is to combine the maximisation of its economic contribution with the well-being of the local societies of the destinations, adapting them to their current and future tourism realities. This is a challenge that requires the highest political priority.
In view of the data on the phenomenon of tourist housing, it is considered necessary to adopt urgent measures, with the aim of organizing the activity of tourist housing through extraordinary measures that balance the activity with the rest of the tourist accommodation sector, acting to ensure a balanced, sustainable and quality offer.
Along these lines, the objective of the Decree-Law is to urgently modify the regulations, adapting them to social demand and new realities, without putting an end to an essential economic activity, such as homes for tourist use, avoiding their rejection, which is increasing considerably and providing greater legal certainty to owners, managers, tourist users and citizens.
In view of the current moratoriums and planning modifications that are being agreed, we believe it is urgent to establish measures that bring our regulatory framework in line with these urban modifications.
III
In accordance with Article 5 of Law 15/2018, tourism policy must be based on the commitment to sustainability, which involves, among others, the alignment of strategies with the objectives of sustainable development and the promotion of socially responsible behaviour of tourism agents, tourists and the population. Consequently and in view of the data on the phenomenon of tourist housing, it is considered necessary to adopt urgent measures, with the aim of organizing the activity of tourist housing through extraordinary measures that balance the activity with the rest of the tourist accommodation sector, acting to ensure a balanced offer, sustainable and quality.
In this line, the objective of the Decree-Law is to regulate the activity of tourist accommodation by updating its
regulatory regulations, adapting them to the new realities, in the search for tourism sustainability in its aspects
economic, social and environmental, and to provide greater legal certainty to owners, managers, tourist users and citizens.
It should be considered that one of the greatest difficulties in limiting the negative externalities of this phenomenon is the complex framework of competences that requires taking into consideration and weighing the regulations of the rest of the administrations that exercise concurrent powers, which should be especially highlighted for its relevance in this the urban planning powers of the municipalities to determine their city model - which recent jurisprudence has emphasised - and the prescriptions of the Services Directive that extraordinarily limits the regulatory capacity in the exercise of tourist powers.
For all these reasons, it is necessary to regulate different aspects: on the one hand, it is necessary to redefine what is considered housing for tourist use, and this in order to demarcate tourist use from seasonal and residential use, thus preventing the rental of housing for tourist use from giving protection to leases that should not be considered as tourist, rather, they must be regulated by Law 29/1994, of 24 November, on Urban Leases, and excluding from the regime the rental by rooms. On the other hand, a period of validity is established for registration in the Register that allows an adaptation in a constantly evolving offer.
On the other hand, a modification of the current regulations must be carried out to put a stop to the unfair competition exercised by those who market their homes illegally, thus harming the regulated tourism sector and escaping the control that the competent authorities can carry out.
Finally, design, quality, safety and accessibility conditions must be established that provide the homes made available to tourists with minimum quality standards that guarantee minimum standards in line with quality tourism.
All this must be accompanied by a review of the sanctioning procedure, greater precision in the types
offenders, as well as the possibility of delegating the sanctioning power.
It also contains technical measures to increase the transparency and quality of the data of the STVs, such as greater precision in the responsible declaration of initiation and in the requirements required. Other measures are aimed at speeding up the procedures for modification and cancellation, which will allow the Tourism Registry of the Valencian Community to be purified so that it fulfils its basic purpose of serving as an instrument of knowledge of the tourism sector and information for the exercise of the administrative powers held by the tourism administration, so that facilitate the management, inspection, control, verification, programming and planning activities attributed to it, as well as the provision of information to interested persons or entities.
It should be considered that this regulation does not affect accommodation in blocks and groups of tourist apartments, which has its specific regulation in other sections of the regulations, but it does directly affect the relevant professional sector of companies managing tourist housing, a key agent in marketing in our autonomous community.
IV
In relation to the regulation of tourist housing, as has already been explained, the increase in illegal supply, its impact on both coexistence and the economy, acquire special relevance in the Valencian Community given its importance as a tourist destination. It is also an action in line with the moratoriums that are being approved by the municipalities with a more urgent need to address the specific problems of gentrification and touristification, as well as with the recent legislative initiatives of other autonomous communities.
The reasons set out above demonstrate that the arguments amply and reasoned justify the adoption of this rule, which does not affect the ordering of the basic institutions of the State, the rights and freedoms of citizens regulated in Title I of the Constitution, the regime of the Autonomous Communities or the
general electoral right and that in view of the foregoing, the circumstances of extraordinary and urgent need established in article 44.4 of the Statute of Autonomy of the Valencian Community as an enabling condition to resort to the legal instrument of the decree law concur.
The jurisprudence of the Constitutional Court has supported the approval of provisions of a socio-economic nature through the regulatory instrument of the royal decree-law in those cases in which an explicit and reasoned motivation of the need and urgency of the measure is appreciated.
The need for the standard has been affirmed in cases of problematic economic situations that require a rapid response. Likewise, urgency has been accepted when the delay in the time of the adoption of the measure in question could generate some damage.
It is also necessary to consider that it is up to the Council, in this type of regulation, to carry out a trial
political or opportunity on the conjuncture and the motivation of the norm.
In the present case, there is a twofold motivation: firstly, to order and specify the regulatory framework without delay, avoiding an illegal offer and avoiding the damage that would be caused by delaying the implementation of urgent measures and, secondly, by immediately adopting these measures to avoid the enormous impact, fundamentally social and environmental, caused by the aforementioned circumstances, minimizing the imbalances produced as much as possible.
It is required that the modifications introduced in this regulation enter into force quickly, to address the situations described above, which would not be possible through the ordinary or urgent legislative procedure, since they would not be approved in a timely manner and would lose the expected effectiveness.
This decree-law complies with all the requirements set out in the doctrine of the Constitutional Court, as it explains the reasons that lead the Council to promote extraordinary measures in the field of tourist housing; and because there is a clear connection between the emergency situation and the specific measure adopted to address it.
As has been explained, if the measures are not implemented as a matter of urgency, the uncontrolled phenomenon of illegal housing and the confusion created in citizens will continue to generate negative externalities and immediate damage to the sector, to citizens and to the tourist image of the Community.
On the other hand, it is necessary to urgently comply with the requirements of the aforementioned EU Regulation that determines technical and data quality requirements. It is necessary to refine and speed up as much as possible the processes related to the entries in the Registry within the established period with guarantees and legal certainty to be able to exchange the required data; a process that is directly linked to assimilation to agility in the fight against illegal supply and the implementation of innovations in inspection.
In view of the above, it can be assured that there is a direct connection between the defined urgency and the specific measures adopted, approval of the decree law, taking into account that the area it affects requires immediate intervention. The regulation that is incorporated will contribute to generating certainty for citizens and will provide security to all legal operators included within this relevant sector; legal certainty which, as is well known, constitutes one of the fundamental pillars on which the legal system is based. All the reasons given amply and reasoned justify the adoption of this regulation, and there is also the necessary connection between the emergency situation described and the specific measure adopted.
V
This regulation is based on the principles of necessity, effectiveness, efficiency, proportionality, legal certainty and transparency provided for in Article 129 of Law 39/2015, of 1 October, on the common administrative procedure of public administrations. By virtue of the principles of necessity, effectiveness, proportionality, legal certainty, transparency and efficiency, this decree-law is justified for reasons of general interest, since it aims to protect the whole
of the productive sector and avoid a structural impact on society. With regard to the principle of transparency, and given that it is a decree-law promoted for reasons of extraordinary urgency of an economic and social nature, the consultation, hearing and public information procedure has been dispensed with in its preparation, in accordance with the provisions of Article 133, paragraph 4, of Law 39/2015, of 1 October, of the common administrative procedure of the public administrations.
All this without prejudice to the fact that the regulatory text will be sent for its knowledge to the Valencian Tourism Council/Intrusion Commission.
In order to guarantee the principle of legal certainty, this decree-law is consistent with the legal system
national and European Union legal system.
In the processing of the decree law, the established procedure has been followed and the mandatory reports have been issued, highlighting that of the Attorney General of the Generalitat and that of the Ministry of Finance, Economy and Public Administration.
By virtue of this, in exercise of the power granted by Article 44.4 of the Statute of Autonomy, and in accordance with the provisions of Article 58 of Law 5/1983, of 30 December, of the Valencian Government, in accordance with the powers conferred by Decree 10/2023, of 19 July, of the President of the Generalitat, which determines the number and name of the departments, and their attributions at the proposal of the Minister of Innovation, Industry, Trade and Tourism, after deliberation of the Council in its session of August 2, 2024:
DECREE
Article 1. Purpose and scope of application
- The purpose of this Decree-Law is to amend Law 15/2018, of 7 June, on tourism, leisure and hospitality in the Valencian Community, and Decree 10/2021, of 22 January, of the Consell, which regulates tourist accommodation in the Valencian Community, with regard to housing for tourist use.
- Dwellings for tourist use located in the territory of the Valencian Community will be subject to the provisions of this Decree-Law. Likewise, as far as applicable, the owners, owners and users of these dwellings, as well as the rest of the administrations and public entities that hold concurrent competences in the matter, will be subject to them.
Article 2. Amendments to Law 15/2018, of 7 June, of the Generalitat, on tourism, leisure and hospitality of
the Valencian Community
- Section 19.1.b. is reworded:
"(b) Classify their establishments as tourist and have, when mandatory, the authorization or express accreditation necessary for the exercise of the tourist activity that is intended to be developed, as well as, in the case of dwellings for tourist use, state the exact location and the registration number in the Tourism Registry of the Valencian Community in all types of advertising that is carried out."
- An article, 64 bis, is inserted with the following wording:
"Article 64 bis. Submission to other regulations
Dwellings for tourist use and other tourist accommodation will be subject to the requirements of tourist, civil, commercial, health, urban planning and environmental regulations, emanating from the European Union, State Administration, the Valencian Community and local entities within the framework of their respective competences.
In particular, the City Councils, for imperative reasons of general interest, and through the exercise of their powers
of urban planning, may establish proportionate limitations, with regard to the maximum number of
Dwellings for tourist use by building, sector, scope, area or zone. Such limitations must obey criteria
clear, unequivocal and objective, which have been duly publicized prior to their application".
- Article 65 is amended to read as follows:
"Article 65. Homes for tourist use.
- Dwellings for tourist use are complete properties, whatever their type, which are transferred for a price, in conditions of immediate availability, for tourist purposes, for a period of less than or equal to 10 days, computed continuously to the same tenant, and which have a municipal report of urban compatibilityfor favourable tourist use, or equivalent document that is so determined by regulation, as well as, where appropriate, the municipal authorisation titles required for said use or activity.
Homes for tourist use are transferred in their entirety, not allowing the transfer by rooms.
In addition, in accordance with cadastral legislation, and for the purposes of the physical identification and location of the properties in which the tourist accommodation activity is carried out, it will be mandatory to state, both in the responsible declarations made and in the contracts for the transfer of the dwellings, the unique and individualized cadastral reference of the property.
The minimum content of the municipal urban compatibility report for tourist use or equivalent document will be established by regulation.
- In any case, it will be presumed that there are tourist purposes, when any of the following circumstances occur
with respect to the property, therefore applying the tourism sector regulations:
- When it is transferred for tourist use by management companies of tourist housing.
- When it is made available to tourist users by its owners or holders for this purpose,
or not services typical of the hotel industry.
- When tourism marketing channels are used. Tourism marketing is considered to exist when it is carried out through tour operators or any other tourist sales or promotion channel, including the Internet, or other systems of new technologies."
- In accordance with the concept of dwelling for tourist use, the following may not be considered as such:
- Dwellings that are rented for a period equal to or greater than 11 days computed continuously to the same tenant.
- The tourist rental of rooms, which is expressly prohibited.
- The rental of rooms for tourist use on boats, caravans or similar, with the exception of the regulatory framework for campsites.
- The registration of homes for tourist use in the Tourism Registry of the Valencian Community will have a
validity of 5 years, with the exceptions expressly regulated in this Law and in its implementing decree.
- Regulations will establish the minimum requirements of design, quality, safety, accessibility, and
equipment applicable to this type of housing.
- Paragraph 5 of Article 77 is amended to read as follows:
'Article 77. Nature and registration
- The registration of persons who exercise tourism professions, companies and tourist establishments will be carried out ex officio once the duly completed communication or declaration of commencement of activity has been received , where appropriate, in which there is evidence of compliance with the requirements determinedregulations for its registration. In the case of dwellings for tourist use, the report or document referred to in Article 65 of this Law must be available, as well as the identification of the dwelling, including the unique and individualised cadastral reference of the property.
- Article 78(3) is amended and a new paragraph 4 is added, which reads as follows:
'Article 78. Modification and deregistration
- Registration in the Tourism Registry of the Valencian Community will be deregistered in the following
Assumptions:
- Declaration of the cessation of the activity, by whoever appears as the owner in the Register.
- The inaccuracy, falsehood or omission, of an essential nature, of any data, statement or document that is
Accompany or incorporate into a communication or responsible declaration
- The modification or disappearance of the circumstances and requirements that gave rise to the registration in the Register.
- When the activity or service has not started, two months have elapsed since the presentation of the mandatory declaration of responsibility.
- Certification issued by the competent administration of the final administrative resolution that determines the lack of the mandatory authorizations or licenses for the exercise of the activity, after processing the corresponding file
- When the tourism inspectorate confirms the cessation of tourist activity for more than 1 year.
- In the case of homes for tourist use, in addition to the above, when the cadastral reference of the property provided for in the second transitional provision of Decree 10/2021 has not been communicated before 31 December 2024.
- In the case of dwellings for tourist use, in addition to the above, the failure to present a new Declaration of Responsibility for renewal after the five-year period established for the validity of the registration, in the form and deadlines indicated by regulations.
- In the case of dwellings for tourist use, in addition to the above, the certification by the city council corresponding to the domicile of the dwelling of the final administrative resolution of a file for the restoration of urban legality ordering the cessation of the activity.
- In the case of dwellings for tourist use, in addition to the above, when it is found that the accommodation is being used in the period declared as tourist for rental as a dwelling or seasonal in the terms established by Law 29/1994, of 24 November, on Urban Leases
- The cancellation of the registration in the Tourism Registry in the cases of letters b), c), d), e), g), i) and j) of the previous number, will be resolved after processing the appropriate file, in which the interested person will be given a hearing. The hearing procedure may be dispensed with in the case of letters a), in the case of letter f) when the inspection report states the will of the owner and the owner not to continue to be registered in the Tourism Registry and in the case of letter h) after notifying the interested party of the expiration of the period."
- Article 88 is amended with the addition of a paragraph 4 to read as follows:
"Article 88. Responsible people.
- The owners of dwellings for tourist use shall have subsidiary liability with respect to infringements in the field of illegal supply or clandestine activity in those cases in which, required to identify the natural or legal persons owning the corresponding tourist activity, they do not indicate it within the period indicated by the request."
- Article 91(10) is deleted
"Article 91. Minor infractions
10. Deleted
- Paragraph 16 of Article 92 is amended and two paragraphs 19 and 20 are added, with the following wording:
"Article 92. Serious infringements.
11. Deleted
16. Failure to comply with the obligation referred to in letter b of article 19.1 to publicise the marketing through any means, and especially through the services of the information society, of the exact location and registration number of the dwelling in the Tourism Registry of the Valencian Community.
19. Failure to communicate the change of owner in a regulatory manner.
20. The refusal of the owners of tourist establishments, including dwellings for tourist use, to provide the identity and contact details of the owners of the tourist activity, as well as the contract or enabling title necessary to carry out that activity, or any other appropriate document for this purpose.
- Article 93 is amended with the addition of a paragraph 6, with the following wording:
"Article 93. Very serious infringements
- To exercise, market, offer, lend or advertise tourist rental by rooms in dwellings of
registered tourist use.
- Overbooking of seats and failure to comply with the provisions relating to the reservation system or its
cancellation, when the affected user is not provided with accommodation under the conditions established in article
20.2 of this law."
- Article 95 is amended with the addition of a paragraph 3, with the following wording:
"Article 95. Graduation of sanctions
3. The number of dwellings for tourist use operated by the owner or management company and the volume of turnover may determine the imposition of penalties corresponding to infringements of a higher or lower nature, respectively."
- Article 98 is amended with the addition of a second paragraph, with the following wording:
'Article 98. Competent bodies.
2. In accordance with the provisions of the legislation regulating the local regime, the competence to initiate, instruct and resolve sanctioning procedures for minor, serious and very serious infringements in the field of tourist accommodation located in its territorial area, as well as, if appropriate, for the administrative review of the acts derived from said sanctioning procedures, may be delegated to the municipalities that request it and meet the general requirements required in the aforementioned legislation to obtain the delegation."
Article 3. Modification of Decree 10/2021, of 22 January, of the Consell, which regulates accommodation
tourism in the Valencian Community
- Article 23 is amended to read as follows:
'Article 23. Content of the declaration of responsibility for tourist accommodation
The declaration of responsibility will contain the identification of the person or entity that owns the activity, including telephone number and email for the purposes of notifications of availability of electronic notifications, as well as the identification of the person who owns the property, if it is different from the person or entity that owns the activity.
In addition, it must contain the identification data of the home and the express pronouncement on the following
Ends:
- That it holds the availability of the property or homes for tourist use and the documentation that accredits it as the case may be (deed of ownership of the property, lease contract, authorization for management between the owner and the company, or other valid title for these purposes).
- That the dwelling or dwellings have the requirements required by the regulations for their registration in the Register with the capacity communicated, and that such requirements will be maintained during the validity of the activity.
- That it has the municipal urban compatibility report for favourable tourist use, or equivalent document provided for in this regulation.
- That the cadastral reference recorded is unique and individualized and responds to the current physical, economic and legal reality of the property or, failing that, the unique registry code of the property is provisionally recorded until the corresponding unique and individualized cadastral reference is obtained in less than a year.
- That they have a licence for the first or second occupation of the dwelling or the equivalent enabling title provided for in Decree 12/2021, of 22 January, of the Council regulating the declaration of responsibility for the first and successive occupation of dwellings, as well as, where appropriate, the municipal enabling title required for their use as tourist accommodation, when, in accordance with municipal planning, the use of tourist housing is residential. Exceptionally, in cases of proven impossibility, an equivalent municipal report will be admitted.
- That the conditions of design, quality, accessibility and safety established in 49.2, 3 and 4 of this Decree are met in the tourist housing, and that it has the licences, authorisations, enabling titles or any other instruments of urban, environmental or municipal opening intervention mandatory for its use for tourist use, when in accordance with municipal planning the use of tourist housing is considered tertiary.
- That it has civil liability insurance or other equivalent guarantee to cover damages that may be caused in the development of the activity under the terms provided for in article 26 of this decree.
- That the dwelling has the licences, certificates or authorisations required by other departments or public administrations, especially urban planning, environmental, horizontal property, health and opening regulations, if required, and that it complies with all applicable sectoral regulations.
- If the establishment is located on common non-developable land, that the declaration of community interest has been obtained that attributes the corresponding tourist use and exploitation or, where appropriate, that its exemption has been processed in accordance with current urban planning legislation.
- Period of provision of the activity in the home. The benefit period must be declared for each dwelling
of activity, being able to be marketed for tourism only in the indicated periods.
- That it complies with the legal provisions relating to fiscal, tax, social security obligations and, in the case of having dependent employees, which are governed by the applicable collective agreement, corresponding to this economic activity.
- That it has a registry certification that certifies that neither the constitutive title or the statutes of the community of owners, or any agreement of the same, enforceable against third parties, determine the impossibility of use for purposes other than those of residence as a habitual residence, or that it has a certificate issued by the administration of the community of owners in the same sense.
- That the obligations of Royal Decree 933/2021, of 26 October, which establishes the obligations of documentary registration and information of natural or legal persons who carry out accommodation and rental activities of motor vehicles or the regulation that replaces it, are complied with.
- In the case of holding the rural specialty, which complies with the requirements set out in article 68 of this
decree.
- That it has the energy certificate of the property.
- In the case of tourist dwellings that are installed in premises for tertiary use of existing buildings,
that the descriptive technical report contained in article 49.3 of this decree is available.
- A new article, 23 bis, is introduced, with the following content:
'Article 23a. Validity of the registration in the tourist register of dwellings for tourist use
- The registration of homes for tourist use in the tourism registry of the Valencian Community will have a
validity of five years, with the exceptions established in the Law and in this decree.
- The responsible declaration enables the exercise of the activity for a period of five years from its
presentation and this must be stated in the corresponding registration.
To renew the registration for a new period of five years and continue with the exercise of the activity, the owner of the activity, with the express permission of the owner, must submit, in any case, within the month prior to the end of each period, a new declaration of responsibility for renewal.
This declaration responsible for renovation must be accompanied by a new municipal report of urban compatibility for favourable tourist use, updated, or equivalent document provided for in these regulations.
The new declaration of responsibility for renewal will expressly include that it complies with all the legal and regulatory requirements in force at the time of renewal.
For those dwellings registered prior to the entry into force of this decree-law, it will not be necessary to include
In this declaration responsible for renewal, the certifications mentioned in section l) of article 23.
The established period of 5 years has expired without a new declaration of responsibility for renewal having been submitted
and municipal report or equivalent document in cases where it is required, the property will be removed from the Registry.
- When there is a change in the ownership of a registered tourist property, either before the entry into force of Law 15/2018, or after it, both the regime and requirements in force will be applicable to the property and to the new owner, and a new declaration of responsibility must be submitted, with the provision of the municipal report of urban compatibility for favourable tourist use or equivalent document.
- Article 27(3) is left without content.
Cases:
- Article 30 is amended to read as follows:
'Article 30. Casualty
- The registration in the Tourism Registry of the Valencian Community will be deregistered, in the following
- Declaration of the cessation of the activity, by whoever appears as the owner in the Register.
- The inaccuracy, falsehood or omission, of an essential nature, of any data, statement or document that is
Accompany or incorporate into a communication or responsible declaration
- The modification or disappearance of the circumstances and requirements that gave rise to the registration in the Register.
- When the activity or service has not started, two months have elapsed since the presentation of the mandatory declaration of responsibility.
- Certification issued by the competent administration of the final administrative resolution that determines the lack of the mandatory authorisations or licences for the exercise of the activity, after processing the corresponding file.
- When the tourism inspectorate confirms the cessation of tourist activity for more than 1 year.
- In the case of dwellings for tourist use, when the cadastral reference provided for in the second transitional provision of Decree 10/2021 has not been communicated before 31 December 2024.
- In the case of dwellings for tourist use, the failure to submit a new Declaration of Responsibility for renewal after the five-year period established for the validity of the registration, in the form and deadlines indicated in this decree.
- In the case of dwellings for tourist use, the certification by the city council corresponding to the domicile of the dwelling of the final administrative resolution of a file for the restoration of urban legality ordering the cessation of the activity.
- When it is found that the accommodation is being used in the period declared as tourist for rental as a home or seasonal under the terms established by Law 29/1994, of 24 November, on Urban Leases.
- The cancellation of the registration in the Tourism Registry in the cases of letters b), c), d), e), g), i) and j) of the previous number, will be resolved after processing the appropriate file, in which the interested person will be given a hearing. The hearing procedure may be dispensed with in the case of letters a), in the case of letter f) when the inspection report states the will of the owner and the owner not to continue to be registered in the Tourism Registry and in the case of letter h) after notifying the interested party of the expiration of the period.
- Article 33(2) is amended to read as follows:
'Article 33. Advertising of establishments
2. The advertising of dwellings for tourist use must include their number of
record and its exact location."
- Article 37 is amended with the addition of a paragraph, paragraph 5, with the following wording:
'Article 37. Internal regime rules
- In the case of dwellings for tourist use, there must be a regulation of internal rules that will include, at least, the rules of coexistence of the community in which it is located, the conditions of use of services and facilities and the regime of admission of domestic animals, to avoid altering normal coexistence or putting the safety or physical integrity of the rest of the clientele at risk. This regime will be mandatory for the users of the accommodation. To this end, the owners of the dwellings for tourist use or the owner of the activity must provide the users with an information form of these rules prior to the accommodation, which must be expressly accepted by the latter.
In the event of non-compliance, the owner or holder of the activity will require the user to cease non-compliance or, in the event of serious non-compliance, to leave the home. If this requirement is not met, it shall duly inform the Police or the competent authority. In the event of eviction, the user will lose all the amounts paid for their reservation, if this has been recorded."
- Article 47 is amended to read as follows:
'Article 47. Definitions
- Dwellings for tourist use are those defined as such in Article 65 of Law 15/2018.
- Tourist housing management companies are considered to be natural or legal persons whose professional activity, whether main or not, consists of the transfer for consideration of the use and enjoyment of at least five tourist dwellings, regardless of whether or not they are located in the same building or complex, and regardless of the title that enables them to do so.
- Each of the dwellings for tourist use registered in the Tourism Registry must be associated with a unique and individualized cadastral reference that responds to the physical, economic and legal reality of the property or, failing that, if a cadastral alteration is being processed, to the unique registry code of the property.
- A new article, 47 bis, is introduced, with the following wording:
'Article 47a. Municipal report on urban compatibility for tourist use
- Dwellings for tourist use must have the municipal urban compatibility report for favourable tourist use, the minimum content of which will include the essential identification data of the property, including the complete address, its unique and individualised cadastral reference or, failing that, the unique registration code of the property, the classification of the land, the permitted urban use and the meaning of the report.
This report will be issued by the city council in whose municipal area the property is located for the sole purpose of ensuring that the department of the Administration of the Council responsible for tourism has evidence of the urban compatibility for the tourist use of the property in accordance with the current urban planning that is of application. Consequently, the issuance of this report, even if its meaning is favourable, does not replace any other licences, authorisations, enabling titles or other instruments of urban, environmental or opening intervention mandatory for its use for tourist use.
- For tourism purposes, instead of the municipal urban compatibility report for tourist use, a favourable certificate issued by the collaborating entities of the municipal administration in the verification of urban planning actions (ECUV) may be provided, provided that the municipal planning is zoned and contains provisions on homes for tourist use.
This certificate will have the same validity and effects as the aforementioned report and must reflect the same content
minimal.
- In the event that the dwellings that intend to be used for tourist use are located on non-developable land, in addition to the municipal urban compatibility report for tourist use or equivalent document, prior to their registration in the Register, they must obtain the declaration of community interest attributed by the corresponding use and use of tourism or, where appropriate, prove that their exemption has been processed, as well as the corresponding environmental intervention instrument in accordance with current urban planning legislation, if applicable.
- Article 49 is amended to read as follows:
"Article 49. Design and quality standards applicable to tourist housing. Safety requirements and
accessibility.
- When, in accordance with municipal planning, tourist housing is installed in buildings whose main urban use is residential housing, they will comply with the design and quality standards in force in the Valencian Community required for residential buildings. In this case, its holders must have the first or subsequent occupancy licence or the equivalent enabling title provided for in Decree 12/2021, of 22 January, of the Council regulating the responsible declaration for the first and successive occupation of dwellings.
- Tourist housing that is installed in tertiary use premises of newly built buildings will comply with the design and quality standards in force in the Valencian Community required for residential buildings. In these cases, their holders must obtain as many urban and environmental permits as are mandatory for the exercise of the activity.
- Dwellings for tourist use that are installed in premises for tertiary use of existing buildings, whether or not they come from a change of use, will comply with the design and quality standards for residential buildings with regard to the relationship between the different spaces or enclosures, linear dimensions, horizontal and vertical circulations, ventilation and lighting openings, parking and lighting and ventilation of the homes and the building. In these cases, their holders must obtain as many urban and environmental permits as are mandatory for the exercise of the activity.
In the latter case, and in order to facilitate the adaptation of these premises for tertiary use to tourist use and also to guarantee the quality of the tourist offer, when it is not possible to comply in their entirety with all the requirements indicated above, the application of the following flexibility criteria will be allowed:
- In the section on linear dimensions, the overlapping of the figures that can be registered for furniture will be admitted
as long as their use is not prevented for the planned functions taking into account the occupation of the tourist accommodation.
- When an enclosure cannot fully comply with the required natural lighting and/or ventilation conditions, or the intended tourist accommodation does not have the dimensions of the courtyards defined in the design and quality regulations, complementary measures will be adopted to guarantee compliance, such as, among others and without being exhaustive:
- º The creation, when possible, of complementary courtyards.
- º The provision of a greater surface area for lighting and ventilation to the outside, than required by regulations, located in both common areas and accommodation.
- º Natural lighting and ventilation through translucent façades, roof windows, polycarbonate domes, skylights, skylights on roofs and tubular skylights.
- º Provision of forced ventilation systems with or without integrated heat recovery, which will provide a sufficient flow of outside air and guarantee the extraction and expulsion of stale air, so that the indoor air quality requirements established in the Regulations on Thermal Installations in Buildings, approved by Royal Decree 1027/2007, are met. of 20 July.
In such cases, it will be certified by a competent technician that, given the impossibility of being able to fully comply with the requirement or requirements demanded in the design and quality regulations, complementary measures or elements have been implemented to compensate for this lack. All this will be recorded in a descriptive technical report.
- In the case of premises on the ground floor, if there are premises that cannot comply with the above provisions, they must be independent of the resulting tourist dwellings, leaving a record of this in the Land Registry. Access to these areas may only be enabled through common elements of the building.
- The supervision and control of compliance with the conditions outlined in the previous sections, as well as the requirements of functionality, accessibility, structural safety, safety in the event of fire and safety of use regulated in the technical building code and other applicable regulations, will correspond to the City Councils within the processing of the licenses, authorisations, enabling titles or instruments of urban, environmental or opening intervention that are mandatory in each case, either directly or through the intervention of collaborating entities of the municipal administration.
- Without prejudice to the conditions indicated in the previous sections, dwellings for tourist use must comply with the minimum requirements established in Annex III, the supervision and control of which corresponds to the department of the Administration of the Council responsible for tourism.
- Annex III is amended to read as follows:
ANNEX III
Minimum requirements for tourist accommodation
Without prejudice to the conditions set out in Article 49 of these Regulations, they shall apply to dwellings
for tourist use the following minimum requirements:
- ACCESS AND COMMUNICATIONS
– Evacuation plan of the building on the door of the dwellings or, failing that, emergency instructions at the
several languages.
– Elevator (from number of floors Ground Floor + 4) (1)
– Entry of customers, in the case of homes located on ground floors.
– 24-hour telephone service.
(1) It must be understood that ground floor + 4 is exempt from an elevator.
- FACILITIES AND SERVICES
– Power sockets in all rooms with voltage indicator (1).
– Hot water.
– Evacuation plan located on the door of the house.
– List of emergency and interest telephone numbers located in a visible place.
– Refrigeration (2) at least in living-dining room or living-dining-kitchen room.
– Heating (2) at least in living-dining room or living-dining-kitchen room.
– Internet connection, unless the property is located in a geographical area without coverage.
– First aid kit.
– Detailed information about the nearest medical center.
– List of emergency and interest telephone numbers.
– Reception service. It is forbidden to hand over keys through boxes located on public roads.
– Cleaning service (3)
– Linen Change (3)
– Repairs & Maintenance (3)
(1) The voltage indicator next to the sockets may be replaced by a general voltage indication of the entire housing, located in a clearly visible place.
(2) Always with the possibility of achieving a temperature in accordance with current legislation on the subject
energy saving.
(3) The provision of cleaning and laundry services, linen change, repairs, maintenance and garbage collection will be governed by the provisions of the contract entered into for the occupation of the accommodation unit. The person responsible for the provision of these services will be the owner or holder of the activity, and must channel the requests of the clientele, being able to offer it directly or through third parties, without the mere indication of a professional or company that provides the service being possible.
The homes must be delivered in the proper conditions of cleaning and maintenance.
- MINIMUM DIMENSIONS OF DWELLINGS AND THEIR ROOMS:
The minimum dimensions of the dwellings must be subject to those established by the regulations corresponding to their residential use.
- PROVISION OF DWELLINGS FOR TOURIST USE:
In general, the homes will be equipped with the furniture, cutlery, kitchenware, linen and other utensils and accessories necessary to meet the needs of customers according to their capacity.
All bedrooms will be equipped with a wardrobe, inside or outside it.
The homes will be equipped with internet connection, except for areas without coverage, and a television.
The dwelling shall contain an automatic washing machine, unless it is located in a block, or similar structure, which has a common laundry that includes washing machines and dryers available to customers on the premises itself.
The kitchen will be equipped with at least the following elements:
– Refrigerator
– Electric griddle
– Oven/microwave
– Fume extractor, hood, etc.
– Minimum two electric stoves when the dwelling does not exceed 4 beds. From 5 places, you must have three
stoves or more.
ADDITIONAL PROVISIONS
Unique. Municipal report on urban compatibility for tourist use
All references made in the tourist regulations to the municipal urban compatibility report will be understood to be made to the municipal urban compatibility report for tourist use, or equivalent document.
TRANSITIONAL PROVISIONS
First. Regulations applicable to files in process
Proceedings initiated prior to the entry into force of this decree-law will continue to be processed in accordance with the provisions of the previous regulations, unless they voluntarily avail themselves of it by means of a written declaration to that effect.
Second. Regulations applicable to current contracts
Those dwellings for tourist use that at the publication of this regulation have been reserved or contracted for a period equal to or greater than 11 days, will maintain the agreed lease period until its end, at which time, they will be subject to the maximum rental period of 10 days computed continuously to the same tenant. established in this regulation.
Third. Transitional regime for the validity of registration
Those dwellings for tourist use that at the time of publication of this regulation are already registered in the Tourism Registry after the entry into force of Law 15/2018, June 7, of the Generalitat, on tourism, leisure and hospitality of the Community, will maintain the validity of the registration for the exercise of the activity for a period of 5 years from the entry into force of this regulation, After which, they must submit a new declaration of responsibility for renewal with the content and requirements established in article 23 bis of this decree.
Those dwellings registered prior to the entry into force of Law 15/2018, of 7 June, of the Generalitat, on tourism, leisure and hospitality of the Community will only be required to present the declaration responsible for renewal, although only referring to compliance with the minimum requirements of Annex III.
Fourth. Period of adaptation of homes for tourist use registered in the Tourism Registry of the Valencian Community
Dwellings for tourist use in any case will have, from the entry into force of this regulation, a period of 5 years
to adapt to the requirements set out in Annex III.
REPEALING PROVISION
Unique. Regulatory repeal
Any provisions provided for in regulations of equal or lesser rank that are contrary to the provisions of this decree-law are repealed.
FINAL PROVISIONS
First. Modification of Legislative Decree 1/2021, of 18 June, of the Council approving the text
of the Law on Territorial Planning, Urban Planning and Landscape
Point 2 of the Fourth Additional Provision of Legislative Decree 1/2021, of 18 June, of the Council approving the revised text of the Law on Territorial Planning, Urban Planning and Landscape, is amended with the addition of a new letter, e), with the following content:
e) To issue the urban compatibility reports for tourist use contemplated in the regulations governing housing for tourist use, provided that the corresponding municipal planning is zoned and includes provisions on such housing".
Second. Range of amended regulatory provisions
The regulatory rules that are subject to modification by this Decree-Law retain their previous regulatory status and nature, which means that they may be modified or repealed through a subsequent regulation of equal or higher rank.
Third. Entry into force
This Decree-Law will enter into force on the day following its publication in the Official Gazette of the Generalitat
Valencian.
Ontinyent, August 2, 2024
Carlos Mazón Guixot
President of the Generalitat
Nuria Montes de Diego
Minister of Innovation, Industry, Trade and Tourism
Valencia rental legislation summary
he principal changes with a link below to the article.
The main changes introduced by the Consell’s Decree-Law 9/2024 regarding tourist-use housing in the Valencian Community
August 13, 2024
Ernesto Vidal Martín
This Decree-Law was issued at the beginning of August, justified by the Generalitat Valenciana itself due to the urgent need to implement certain measures to put an end to the “uncontrolled phenomenon of illegal housing.”
These measures came into effect on August 8, 2024, the day after their publication in the Official Gazette of the Generalitat Valenciana.
Below, we briefly outline the most relevant changes brought by this Decree-Law to: (i) Law 15/2018 of June 7 on tourism, leisure, and hospitality of the Valencian Community, (ii) Decree 10/2021 of January 22, by the Consell, which regulates tourist accommodation in the Valencian Community as it affects tourist-use housing, as well as (iii) Legislative Decree 1/2021 of June 18, by the Consell, approving the Consolidated Text of the Land Use, Urban Planning, and Landscape Law.
Length of Stays:
To differentiate tourist rental from other rental modalities, stays of 10 days or less to the same tenant will be considered as tourist stays, provided that other legal requirements for tourist-use housing are met.
Prohibition on Renting Rooms: The ban on renting out tourist-use housing by the room remains. Remember that Law 15/2018 already required that the entire property be rented out.
Unique and Individualized Cadastral Reference: Tourist-use properties must have a unique and individualized cadastral reference for each property or tourist housing unit.
In this regard, the Decree imposes an obligation on existing tourist-use properties to report their cadastral reference to the Administration by December 31, 2024. Otherwise, they will be deregistered from the Tourism Registry of the Valencian Community.
Facilitating License Processing:
To expedite the processing of tourist-use licenses, collaborating entities of the Administration (ECUV) are authorized to issue the “equivalent document” to the urban compatibility report, which until now could only be issued by municipal technicians, provided that the corresponding municipal planning is zoned and includes provisions regarding such housing.
Limitations in Planning for Tourist Use:
Municipalities are authorized to introduce, based on general interest reasons, limitations regarding the maximum number of tourist-use housing per building, sector, area, or zone. However, these limitations must always be “proportional.”
These limitations, the regulation states, “must comply with clear, unequivocal, and objective criteria, which have been duly publicized before their application.”
Similarly, municipalities are responsible for supervising and controlling the compliance with the conditions required for tourist-use housing.
Finally, it is anticipated that municipalities that so request may be delegated the authority to conduct and resolve sanctioning procedures for violations related to tourist-use housing located in their territorial jurisdiction, as well as to review in administrative proceedings the acts derived from such sanctioning procedures.
Transitional Regime Regarding the Validity of Registration in the Tourism Registry:
As a general rule, registration in the Tourism Registry is valid for 5 years, after which it must be renewed. However, the Decree-Law distinguishes between:
Tourist-use housing registered in the Tourism Registry after the entry into force of this Decree-Law will maintain the validity of the registration for 5 years, from August 8, 2024, until August 8, 2029, after which a new renewal declaration must be submitted to continue the activity, complying with all the requirements established in Article 23 bis of the Decree-Law.
However, tourist-use housing registered in the Tourism Registry before the entry into force of Law 15/2018 will only be required to submit a renewal declaration, but only concerning the minimum requirements of Annex III.
Certification Requirement for New Tourist-use Housing:
It is also important to note that new tourist-use housing that begins operations after the entry into force of the Decree-Law must provide a registry certification proving that neither the constitutive title nor the community statutes of the property, nor any agreement of the community, prevent the property from being used for purposes other than as a permanent residence.
However, the Decree expressly states that this requirement will not apply to housing registered before the entry into force of this Decree-Law.
Transfer of Property:
In the case of the transfer of ownership of a tourist-use property already registered in the Tourism Registry, the enabling title to operate is lost, and the new owner must submit the corresponding renewal declaration and municipal compatibility report, applying the legal regime and requirements in force at the time of submission.
Requirements for Tourist Housing in Commercial Premises:
As a general rule, tourist housing located in commercial premises of existing buildings (ground floors) must comply with “design and quality standards for residential buildings regarding the relationship between different spaces, dimensions, horizontal and vertical circulation, ventilation and lighting, parking, and lighting and ventilation of the housing and the building.”
However, to facilitate the adaptation of these commercial premises for tourist use, flexible criteria (detailed in Article 3, Section 9 of the Decree-Law, which amends Article 49 of Decree 10/2021 of January 22, by the Consell, regulating tourist accommodation in the Valencian Community regarding design and quality standards applicable to tourist-use housing) will be accepted.
Infractions and Sanctions:
Regarding infractions and sanctions, it is important to note that property owners of tourist-use housing (who may not coincide with the operator) are assigned subsidiary responsibility for infractions related to illegal or clandestine activity in cases where, if requested to identify the individuals or entities responsible for the tourist activity, they fail to do so within the required period.
Additionally, some new grounds for infractions have been added, such as the refusal of property owners of tourist establishments, including tourist-use housing, to provide the identity and contact details of the individuals responsible for the tourist activity, as well as the necessary contract or enabling title for the activity, or any other relevant document. This is considered a serious infraction and may be sanctioned with a fine ranging from 10,001 to 100,000 euros, without prejudice to the possibility of ordering the temporary closure of the establishment or the temporary suspension of the right to conduct the tourist activity.
Service Quality Requirements:
In terms of service quality requirements, the following new measures stand out: (i) the delivery of keys through boxes located on public streets is prohibited, and (ii) there is an obligation to provide a 24-hour contact telephone number.
Thank you to: G_AP
The Valencian Community has approved a new 10-day rule for guests staying in tourist accommodation.
New Decree on Tourist Accommodations in the Valencian Community: 10-Day Limit
The new Decree Law 9/2024 by the Generalitat Valenciana introduces a 10-day maximum stay for guests in tourist accommodations. This regulation aims to differentiate between short-term rentals and seasonal or residential leases. Property owners are concerned about the arbitrary nature of this limit, which could negatively impact their income, especially during peak seasons when longer stays are common.
What Does This New Regulation Entail?
The decree specifies that a property is considered a tourist accommodation if it is rented for up to 10 consecutive days to the same guest. Exceeding this limit reclassifies the rental under the Urban Leases Act (LAU), requiring a seasonal rental contract with different terms and less flexibility than a tourist lease.
Impact and Concerns from Property Owners
Owners argue that the 10-day limit is arbitrary and does not reflect market realities, particularly during summer months when stays typically range from 15 to 30 days. They believe this restriction could violate constitutional property rights and negatively affect the region’s tourism industry.
Consequences of Non-Compliance
Renting a tourist property for more than 10 consecutive days could lead to severe penalties. The law includes fines of up to €10,000 for minor infractions and removal from the tourist property registry if inappropriate use is detected. Longer bookings would also require a seasonal rental contract, offering less protection and fewer benefits than a tourist rental.
Avoiding the 10-Day Limitation
Attempting to bypass the restriction by signing successive contracts could be considered fraudulent and result in additional penalties. The regulation is designed to prevent abuse, and any attempts to circumvent it could lead to the loss of tourist property registration and substantial fines.
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I & S Administration Consultancy has been set up to help Multi-cultural community Presidents and committees manage urbanisations efficiently and effectively. Through years of experience working within a team of Spanish administrators we have identified the most important services required by residential communities as well as the most common causes for complaint. Our aim is to provide exemplary support services to multi-cultiural communities by offering a full range of administration services in a manner and language to make effective communication a matter of course.
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Law of Horizontal Property
CONSOLIDATED LEGISLATION
Law 49/1960, of July 21, on horizontal property.
Head of state
«BOE» no. 176, of July 23, 1960 Reference: BOE-A-1960-10906
INDEX
CONSOLIDATED TEXT
Last modified: October 06, 2021
If in general terms any legal system cannot be conceived or established behind the demands of the social reality to which it is intended, all the more so when it deals with an institution that, like horizontal property, has acquired, especially in recent years, such a thriving vitality, despite not finding more normative support than the openly insufficient one represented by article three hundred and ninety-six of the Civil Code. The present law intends, therefore, to follow the social reality of the facts. But not in the simple sense of turning any data obtained from practice into a norm, but with a broader and deeper scope. On the one hand, due to the future dimension inherent in the legal system, that prevents understanding it as a mere sanction of what happens today and forces the forecast of what can happen. And on the other hand, because although the starting point and the immediate destination of the norms is to govern human relations, for which its adaptation to the concrete and historical demands and contingencies of life is very important, we must not forget either that its ultimate purpose, especially when positive law is conceived as a function of natural law, is to achieve an order of coexistence presided over by the idea of justice, which, as a moral virtue, overcomes both the reality of the facts and the determinations of the legislator, which must always be limited and guided by it.
There is a basic social fact that in modern times has greatly influenced the planning of urban property. It manifests itself through a constant factor, which is the insurmountable need for buildings, both for the life of the person and the family and for the development of fundamental activities, constituted by commerce, industry and, in general, exercises of the professions. Together with this factor, which is constant in the sense of being connatural to every system of life and coexistence within an elementary civilization, today there is offered, caused by very diverse determinations, another factor that is externalized in very pronounced terms, and it is the one represented by the difficulties involved in the acquisition, availability and enjoyment of habitable premises. The action of the State has considered and attended to this real situation in three spheres, although diverse, very directly related: in the field of construction, promoting it by virtue of indirect measures and even, on occasions, directly confronting the company; in the sphere of leasing, through frequently renewed legislation, which restricts the autonomous power of the will in order to ensure permanence in the enjoyment of homes and business premises in economic conditions subject to a system of intervention and revision, and in the sphere of property, mainly by virtue of the so-called horizontal property, which projects this ownership over certain spaces of the building. The essential raison d'être of the horizontal property regime rests on the purpose of achieving access to urban property through a capital investment that, Being able to be limited to the space and essential elements to attend to one's own needs, it is less numerous and, therefore, more affordable to all and the only one possible for large sectors of people. This being so, the horizontal property regime not only needs to be recognized, but also requires that it be encouraged and channeled, providing it with a complete and effective management. And even more so if it is observed that, on the other hand, while the current legislative provisions on urban leases do not go beyond being occasional remedies, which resolve the conflict of interest in an imperfect way, since the strengthening of the rental institution is achieved imposing on the property a burden that it can hardly bear; instead, combining the measures aimed at increasing construction with a well-organized horizontal property regime, the housing problem and those related to it are addressed on a more appropriate level, which allows stable solutions; and this, in the long run, will redound to the advantage of the rental system itself, which may, without the pressure of pressing demands, liberalize itself and normally fulfill its socio-economic function.
The law represents, more than a reform of the current legality, the "ex
novo”, in a complete way, of the property by flats. It is carried out through a law of general character, in the sense of being applicable to the entire national territory. Article three hundred and ninety-six of the Civil Code, as occurs in similar cases, collects the essential notes of this property regime and, otherwise, is reduced to a reference rule. The general nature of the law is advised, above all, for the reason of legislative policy derived from the fact that the need it serves is manifested equally throughout the territory; but a reason of legislative technique has also been taken into account, such as that the provisions in which it is translated, without descending to the regulations, are sometimes of a circumstantial specificity that exceeds the tonic of a Civil Code.
Horizontal property made its irruption in legal systems as a mode of community property. The progressive development of the institution has mainly tended to underline the profiles that make it independent from the community. The modification that the Law of October 26, 1939 introduced in the text of article three hundred and ninety-six of the Civil Code already meant an advance in that sense, since it recognized the exclusive or singular property of the flat or premises, leaving the community, as an accessory , circumscribed to what has been called common elements. The law –which collects the material prepared with consideration and care by the Code Commission–, going one step further, aims to maximize the individualization of the property from the point of view of the object. To this end, to this object of the relationship, constituted by the apartment or premises, the property itself is incorporated, your belongings and services. While on the floor «stricto sensu», or space, delimited and of independent use, the use and enjoyment are exclusive, on the «property», building, belongings and services – abstraction made of the particular spaces – such uses and enjoyment must be be naturally shared; but one and the other rights, although different in their scope, are considered inseparably united, a unity that they also maintain with respect to the power of disposition. Based on the same idea, the coefficient or quota is regulated, which is no longer the participation in what was previously called common elements, but expresses, actively and also passively, as a module for loads, the proportional value of the floor and how much it is considered united, in the whole property, which, in this individualizing purpose there is no need to see a dogmatic concern and much least the consecration of an ideology of individualistic sign. It is about not forgetting the aforementioned social function that this institution fulfils, understanding that the design of simplifying and facilitating the horizontal property regime is thus carried out in a more satisfactory way. With the distancing from the community of property system, the express elimination of the rights of first refusal and redemption, recognized, with certain peculiarities, in the current wording of the aforementioned article three hundred and ninety-six, is not only consistent, but reassuring. Now, in this case, too, it has not been this sole technical consideration that has guided the law.
Reason for special study has been what concerns the constitution of the regime of the horizontal property and the determination of the set of duties and rights that comprise it. Until now, and this has a historical justification, this matter has been delivered almost entirely, in the absence of legal regulations, to private autonomy reflected in the Statutes. These, frequently, were not the result of the free reciprocal determinations of the contracting parties, but were usually dictated, subject to certain types generalized by practice, by the promoter of the construction company, limiting themselves to giving their adhesion to the people who entered the horizontal property regime. The law provides a regulation that, on the one hand, is sufficient in itself – with the exceptions left to private initiative – to constitute, in essence, the legal system that presides over and governs this kind of relationship, and, on the other hand, it admits that, by the will, certain rights and duties are specified, completed and even modified, provided that the rules of necessary law, clearly deducible from the same terms of the law, are not contravened. Hence, the formulation of Statutes will not be essential, although they may fulfil the function of developing the legal order and adapting it to the specific circumstances of the various cases and situations.
The system of rights and duties within horizontal property appears structured based on the interests at stake.
The rights of enjoyment tend to attribute to the owner the maximum possibilities of use, with the limit represented both by the concurrence of the rights of the same class of others and by the general interest, which is embodied in the conservation of the building and in the subsistence of the horizontal property regime, which requires a material and objective basis. For the same reason, closely linked to the rights of enjoyment appear duties of the same nature. Attempts have been made to configure them with criteria inspired by neighborhood relations, trying to dictate rules aimed at ensuring that the exercise of one's own right does not lead to the detriment of others or to the detriment of the whole, in order to establish the bases of normal coexistence. and peaceful.
In addition to regulating the rights and duties corresponding to enjoyment, the law deals
of those others that refer to the economic disbursements to which the owners have to deal jointly, either because they derive from the facilities and services of a general nature, or because they constitute charges or taxes that affect the entire building. The basic criterion taken into account to determine the participation of each one in the disbursement to be made is the expressed quota or coefficient assigned to the floor or premises, taking care to mean that the non-use of the expense-generating service does not exempt from the corresponding obligation.
One of the most important novelties contained in the law is to invigorate in everything possible the binding force of the duties imposed on the owners, as well as for what concerns the enjoyment of the apartment, as well as for what refers to the payment of expenses. Through the application of the general regulations in force in the matter, the breach of the obligations generates the action directed to judicially demand its fulfilment, either in a specific way, that is, imposing through coercion what has not been voluntarily observed, or well by virtue of the pertinent indemnity. But this normal sanction for noncompliance may not be sufficiently effective in cases such as those considered here, and this for various reasons: one is that failure to comply with duty brings extremely disturbing repercussions for large groups of people, while hindering the functioning of the horizontal property regime; Another reason is that, in relation to the duties of enjoyment, the judicial imposition of specific compliance is practically impossible due to the negative nature of the obligation, and compensation does not cover the purpose of harmonizing coexistence. For this reason, the possibility of judicial deprivation of the enjoyment of the apartment or premises is foreseen when there are exhaustively indicated circumstances, and on the other hand, the contribution to common expenses is ensured with a real affectation of the apartment or premises to the payment of this credit considered preferential.
The concurrence of a group of people in the ownership of rights that, without despite their substantial individualization, fall on fractions of the same building and give rise to relationships of interdependence that affect the respective owners, it has made the creation of management and administration bodies essential in practice. The law, which at all times has wanted to be open to the teachings of experience, has taken it very especially into account in this matter. And the result of it, as well as the careful consideration of the various problems, has been to normally entrust the proper functioning of the horizontal property regime to three bodies: the Board, its President and the Administrator. The Board, made up of all the holders, has the duties of a collective governing body, it must meet mandatory once a year, and for the adoption of valid agreements, as a general rule, the favourable vote of both the numerical or personal majority and the economic majority is required, except when the importance of the matter requires unanimity, or when, on the contrary, due to the relative importance of that, and so that the simple passivity of the owners does not hinder the functioning of the institution, the simple majority of the attendees is sufficient. The position of President, who must be elected from within the Board, implicitly implies the representation of all the holders in court and outside of it, with which the delicate problem of legitimacy that has been taking place is resolved. And, finally, the Administrator, who must be appointed by the Board and is removable, whether or not he is a member of it, must always act in dependence on it,
On the other hand, this has been given some flexibility so that the number of these people in charge of representation and management is greater or less depending on the importance and need of the community.
Finally, it should be pointed out that the economy of the established system has interesting repercussions insofar as it affects the Property Registry and requires a brief reform of the mortgage legislation. In an effort to clarify, it has been based on the advisability of adding two paragraphs to the eighth article of the current Mortgage Law, the fourth and the fifth, which sanction, in principle, the possibility of registering the building as a whole, subject to to the horizontal property regime, and at the same time that of the apartment or premises as an independent farm, with its own registration folio.
The fourth number of the aforementioned eighth article provides for the normal hypothesis of constitution of the horizontal property regime, that is, the construction of a building by an owner who uses it precisely for the alienation of flats, and the case, less frequent, that several owners of a building try to get out of the undivided mutual agreement, or build a building with the intention of distributing it, "ab initio", among themselves, becoming sole owners of apartments or independent fractions. Exceptionally, with the same purpose of simplifying the entries, it is allowed to register the specific allocation of the repeated apartments in favor of their respective owners at the same time, provided that they all request it.
And the fifth number of the same eighth article allows creating the autonomous and independent of each floor or premises, provided that the property and the constitution of the horizontal property regime are previously registered.
By virtue of it, and in accordance with the proposal prepared by the Spanish Courts,
I HAVE:
CHAPTER I
General disposition
Article One.
The purpose of this Law is to regulate the special form of property established in article 396 of the Civil Code, which is called horizontal property.
For the purposes of this Law, those parts of a building that are capable of being used independently as they have access to a common element of the building or to the public thoroughfare will also be considered premises.
Article Two.
This Law will apply:
- To the communities of owners constituted in accordance with the provisions of article 5.
- To the communities that meet the requirements established in article 396 of the Civil Code and have not granted the constitutive title of the horizontal property.
These communities will be governed, in any case, by the provisions of this Law in relation to the legal regime of property, its private parts and common elements, as well as in terms of the reciprocal rights and obligations of the community members.
- To private real estate complexes, in the terms established in this Law.
- To the sub-communities, understanding as such those that result when, in accordance with the provisions of the constitutive title, several owners have, in a community regime, for their exclusive use and enjoyment, certain common elements or services endowed with unity and functional independence or economic.
- To the urban conservation entities in the cases in which their statutes so provide.
CHAPTER II
Of the property regime by flats or premises.
Article Three.
In the property regime established in article 396 of the Civil Code, each floor or premises corresponds to:
- The singular and exclusive right of property over a space sufficiently delimited and capable of independent use, with architectural elements and installations of all kinds, apparent or not, that are included within its limits and exclusively serve the owner, as well as that of the Annexes that have been expressly indicated in the title, even if they are located outside the delimited space.
- The co-ownership, with the other owners of flats or premises, of the remaining elements,
common belongings and services.
Each floor or local will be attributed a participation fee in relation to the total value of the property and referred to hundredths of it. Said quota will serve as a module to determine the participation in the charges and benefits due to the community. The improvements or impairments of each floor or premises will not alter the assigned quota, which may only be varied in accordance with the provisions of articles 10 and 17 of this Law.
Each owner can freely dispose of his right, without being able to separate the elements that comprise it and without the transmission of the enjoyment affecting the obligations derived from this property regime.
Article Four.
The action of division will not proceed to put an end to the situation that regulates this law. It can only be exercised by each joint owner on a specific floor or premises, circumscribed to it, and provided that the joint venture has not been established intentionally for the common service or utility of all the owners.
Article Five.
The constitutive title of the property by floors or premises will describe, in addition to the property as a whole, each of those to which a correlative number will be assigned. The description of the property must express the circumstances required in the mortgage legislation and the services and facilities that it has. The one of each floor or local will express its extension, boundaries, plant in which it will be found and the annexes, such as garage, attic or basement.
In the same title, the participation fee that corresponds to each floor or premises will be established,
determined by the sole owner of the building at the beginning of its sale by flats, by agreement of all the existing owners, by award or by judicial resolution. For its fixation, the useful surface of each floor or premises will be taken as a basis in relation to the total of the property, its interior or exterior location, its situation and the use that is rationally presumed to be made of the services or common elements.
The title may also contain rules of constitution and exercise of the right and provisions not prohibited by law in order to the use or destination of the building, its different floors or premises, facilities and services, expenses, administration and government, insurance, conservation and repairs, forming a private statute that will not harm third parties if it has not been registered in the Land Registry.
In any modification of the title, and except for what is provided on the validity of agreements, the same requirements as for the constitution will be observed.
Article Six.
To regulate the details of coexistence and the proper use of services and common things, and within the limits established by the Law and the statutes, the group of owners may set internal rules that will also bind all owners as long as they are not modified in the manner foreseen to reach agreements on the administration.
Article Seven.
- The owner of each floor or premises may modify the architectural elements, installations or services of the former when it does not undermine or alter the security of the building, its general structure, its configuration or exterior condition, or harm the rights of another owner, and must account for such works previously to whoever represents the community.
In the rest of the property you will not be able to make any alterations and if you notice the need for urgent repairs, you must notify the administrator without delay.
- The owner and the occupant of the apartment or premises are not allowed to carry out activities in it or in the rest of the property that are prohibited in the statutes, that are harmful to the property or that contravene the general provisions on annoying, unhealthy, harmful, dangerous or dangerous activities or illegal.
The president of the community, on his own initiative or that of any of the owners or occupants, will require whoever carries out the activities prohibited by this section to immediately cease them, under penalty of initiating the appropriate legal actions.
If the offender persists in his conduct, the President, with the prior authorization of the Board of Owners, duly convened for this purpose, may file an injunction against him, which, in matters not expressly provided for in this article, will be substantiated through the ordinary trial.
Once the lawsuit has been presented, accompanied by the accreditation of the irrefutable request to the offender and the certification of the agreement adopted by the Board of Owners, the judge may agree on a precautionary basis the immediate cessation of the prohibited activity, under penalty of incurring in the crime of disobedience. He may also adopt as many precautionary measures as may be necessary to ensure the effectiveness of the cessation order. The claim must be directed against the owner and, where appropriate, against the occupant of the home or premises.
If the judgment were upheld, it may order, in addition to the definitive cessation of the
prohibited activity and compensation for damages as appropriate, deprivation of the right to use the home or premises for a period not exceeding three years, depending on the seriousness of the infraction and the damage caused to the community. If the offender was not the owner, the sentence may declare all his rights related to the home or premises definitively extinguished, as well as his immediate release.
Article Eight. (Repealed).
Article Nine.
- The obligations of each owner are:
- Respect the general facilities of the community and other common elements, whether for general or private use of any of the owners, whether or not they are included in their flat or premises, making proper use of them and avoiding at all times that they are caused damage or flaws.
- Keep your own apartment or premises and private facilities in good condition, in terms that do not harm the community or other owners, compensating for the damage caused by your carelessness or that of the people for whom you must respond.
- Consent in your home or premises to the repairs required by the service of the property and allow in it the essential easements required for the performance of works, actions or the creation of common services carried out or agreed upon in accordance with the provisions of this Law, having the right to be compensated by the community for the damages caused.
- Allow entry to your apartment or premises for the purposes stated in the three previous sections.
- Contribute, in accordance with the participation fee set in the title or as specifically established, to the general expenses for the proper maintenance of the property, its services, charges and responsibilities that are not subject to individualization.
The credits in favour of the community derived from the obligation to contribute to the support of the general expenses corresponding to the quotas attributable to the expired part of the current annuity and the previous three years have the status of preferential for the purposes of article 1,923 of the Code. Civil and precede, to your satisfaction, those cited in numbers 3, 4 and 5 of said precept, without prejudice to the preference established in favour of salary credits in the consolidated text of the Statute Law of Workers, approved by Royal Legislative Decree 1/1995, of March 24.
The purchaser of a home or premises under the horizontal property regime, even with title registered in the Property Registry, responds with the acquired property of the amounts owed to the community of owners for the maintenance of general expenses by the previous owners up to the limit of those that are attributable to the expired part of the annuity in which the acquisition takes place and the previous three calendar years. The apartment or premises will be legally subject to the fulfillment of this obligation.
In the public instrument through which the home or transferor, must declare that they are up to date in the payment of the general expenses of the community of owners or express those that they owe. The transferor must provide at this time certification on the state of debts with the community coinciding with his declaration, without which the granting of the public document cannot be authorized, unless he was expressly exempted from this obligation by the purchaser. The certification will be issued within a maximum period of seven calendar days from its request by whoever exercises the functions of secretary, with the approval of the president, who will respond, in case of fault or negligence, for the accuracy of the data recorded in it. and of the damages caused by the delay in its issuance.
- Contribute, according to their respective participation fee, to the endowment of the fund of reserve that will exist in the community of owners to attend to the works of conservation, repair and rehabilitation of the property, as well as the performance of the accessibility works included in article Ten.1.b) of this Law.
The reserve fund, whose ownership corresponds for all purposes to the community, will be endowed with an amount that in no case may be less than 10 percent of its last ordinary budget.
Charged to the reserve fund, the community may sign an insurance contract that covers the damage caused to the property or conclude a permanent maintenance contract for the property and its general facilities.
- Observe due diligence in the use of the property and in its relations with the other owners and answer to them for the infractions committed and the damages caused.
- Communicate to whoever exercises the functions of secretary of the community, by any means that allows proof of receipt, the address in Spain for the purposes of summonses and notifications of all kinds related to the community. In the absence of this communication, the address for summonses and notifications will be the apartment or premises belonging to the community, with full legal effects being given to the occupant of the same.
If a summons or notification to the owner is attempted, it is impossible to carry it out in the place prevented in the previous paragraph, it will be understood to be carried out by placing the corresponding communication on the community bulletin board, or in a visible place of general use enabled for this purpose, with expressive diligence of the date and reasons for which it proceeds to this form of notification, signed by the person who exercises the functions of secretary of the community, with the approval of the president. The notification practiced in this way will produce full legal effects within three calendar days.
- Communicate to whoever exercises the functions of secretary of the community, by any means that allows proof of receipt, the change of ownership of the home or premises.
Whoever fails to comply with this obligation will continue to be liable for the debts with the community accrued after the transfer jointly and severally with the new owner, without prejudice to the former's right to repeat the latter.
The provisions of the preceding paragraph shall not apply when any of the governing bodies established in article 13 has been made aware of the change in ownership of the dwelling or premises by any other means or by conclusive acts of the new owner, or when said transmission is noticeable.
- For the application of the rules of the previous section, expenses that are not attributable to one or more flats or premises will be considered general, without the non-use of a service exempting from compliance with the corresponding obligations, without prejudice to the provisions of article 17.4.
Article ten.
- The following actions will be mandatory and will not require the prior agreement of the Owners' Meeting, whether or not they imply modification of the constitutive title or the statutes, and are imposed by the Public Administrations or requested at the request of the owners:
- The works and the works that are necessary for the adequate maintenance and fulfilment of the duty of conservation of the property and its common services and facilities, including in any case, those necessary to satisfy the basic requirements of safety, habitability and universal accessibility, as well as the conditions of decoration and any others derived from the imposition, by the Administration, of the legal duty of conservation.
- The works and actions that are necessary to guarantee the adjustments reasonable in terms of universal accessibility and, in any case, those required at the request of the owners in whose home or premises they live, work or provide voluntary services, people with disabilities, or over seventy years of age, in order to ensure proper use to their needs of the common elements, as well as the installation of ramps, lifts or other mechanical and electronic devices that favour orientation or their communication with the outside, provided that the amount passed on annually from them, once the subsidies or aid public, does not exceed twelve ordinary monthly payments of common expenses. The mandatory nature of these works will not be eliminated by the fact that the rest of their cost, beyond the aforementioned monthly payments, is assumed by those who have requested them.
It will also be mandatory to carry out these works when the public aid to which the community can have access reach 75% of the amount of the same.
- The occupation of common elements of the building or of the private real estate complex during the duration of the works referred to in the previous letters.
- The construction of new floors and any other alteration of the structure or factory of the building or of common things, as well as the constitution of a real estate complex, as provided for in article 17.4 of the consolidated text of the Land Law, approved by the Royal Legislative Decree 2/2008, of June 20, which are mandatory as a result of the inclusion of the property in a field of rehabilitation or regeneration and urban renewal.
- The acts of material division of flats or premises and their annexes to form other more
reduced and independent, the increase of its surface by aggregation of other adjacent to the same building, or its reduction by segregation of some part, carried out by will and at the request of its owners, when such actions are possible as a result of the inclusion of the property in a field of action of urban rehabilitation or regeneration and renewal.
- Taking into account the necessary or mandatory nature of the actions referred to in letters a) to d) of the previous section, the following shall apply:
- They will be paid for by the owners of the corresponding community or group of communities, limiting the agreement of the Board to the distribution of the pertinent spill and to the determination of the terms of its payment.
- The owners who oppose or unjustifiably delay the execution of the orders issued by the competent authority will be individually liable for the sanctions that may be imposed by administrative means.
- The flats or premises will be subject to the payment of the expenses derived from carrying out said works or actions in the same terms and conditions as those established in article 9 for general expenses.
- They will require administrative authorization, in any case:
- The constitution and modification of the real estate complex referred to in article
17.6 of the revised text of the Land Law, approved by Royal Legislative Decree 2/2008, of June 20, in the same terms.
- When so requested, prior approval by three-fifths of the total owners who, in turn, represent three-fifths of the participation fees, the material division of the flats or premises and their annexes, to form other smaller and more independent; the increase in its surface due to the aggregation of other adjoining buildings of the same building or its decrease due to the segregation of some part; the construction of new floors and any other alteration of the structure or factory of the building, including the closing of the terraces and the modification of the envelope to improve energy efficiency, or of common things, when the requirements referred to in the article are met
17.6 of the revised text of the Land Law, approved by Royal Legislative Decree 2/2008,
of June 20.
In these cases, the consent of the affected owners must be recorded and it will be up to the Owners' Meeting, in common agreement with them, and by a three-fifths majority of the total owners, to determine the corresponding compensation for damages. The setting of the new participation quotas, as well as the determination of the nature of the works to be carried out, in case of discrepancy on them, will require the adoption of the appropriate agreement of the Board of Owners, by the same majority. In this regard, the interested parties may also request arbitration or technical opinion in the terms established in the Law.
Article eleven. (repealed).
Article twelve. (repealed).
Article thirteen.
- The governing bodies of the community are the following:
- The Board of Owners.
- The President and, where appropriate, the vice presidents.
- The Secretary.
- The Administrator.
In the statutes, or by majority agreement of the Board of Owners, other governing bodies of the community may be established, without this implying any impairment of the functions and responsibilities towards third parties that this Law attributes to the above.
- The president will be appointed, among the owners, by election or, alternatively, by rotating shift or lottery. The appointment will be mandatory, although the designated owner may request the judge's relief within the month following his access to the position, invoking the reasons that assist him to do so. The judge, by means of the procedure established in article 17.7.ª, will resolve the matter outright, designating in the same resolution the owner who would replace, where appropriate, the president in the position until a new appointment is made within the term determined in the judicial resolution.
Likewise, the judge may be consulted when, for any reason, it is impossible for the Board to appoint the president of the community.
- The president will legally hold the representation of the community, in court and outside of it, in all matters that affect it.
- The existence of vice presidents will be optional. His appointment will be made by the same procedure as that established for the appointment of the president.
It corresponds to the vice-president, or to the vice-presidents by their order, to substitute the president in the cases of absence, vacancy or impossibility of the latter, as well as to assist him in the exercise of his functions in the terms established by the Board of Owners.
- The functions of the secretary and of the administrator will be exercised by the president of the community, unless the statutes or the Board of owners by majority agreement, provide for the provision of said positions separately from the presidency.
- The positions of secretary and administrator may be accumulated in the same person or appointed independently.
The position of administrator and, where appropriate, that of secretary-administrator may be exercised by any owner, as well as by natural persons with sufficient and legally recognized professional qualifications to exercise said functions. It may also fall on corporations and other legal entities in the terms established in the legal system.
- Unless the statutes of the community provide otherwise, the appointment of the governing bodies will be made for a period of one year.
Those designated may be removed from their position before the expiration of the mandate by agreement of the Board of Owners, convened in an extraordinary session.
- When the number of homeowners or premises owners in a building does not exceed four, they may avail themselves of the administration regime of article 398 of the Civil Code, if expressly established in the statutes.
Article Fourteen.
Corresponds to the Board of Owners:
- Appoint and remove the people who hold the positions mentioned in the previous article and resolve the claims that the owners of the flats or premises make against their actions.
- Approve the plan of expenses and foreseeable income and the corresponding accounts.
- Approve the budgets and the execution of all the repair works of the property, whether ordinary or extraordinary, and be informed of the urgent measures adopted by the administrator in accordance with the provisions of article 20.c).
- Approve or amend the statutes and determine the rules of the internal regime.
- Know and decide on other matters of general interest to the community, agreeing on the necessary or convenient measures for the best common service.
Article Fifteen.
- Attendance at the Owners' Meeting will be personal or by legal or voluntary representation, sufficing to accredit this, a document signed by the owner.
If any apartment or premises belonged "pro undivided" to different owners, they will appoint a representative to attend and vote at the meetings.
If the dwelling or premises is in usufruct, attendance and voting will correspond to the bare owner, who, unless otherwise stated, will be understood to be represented by the usufructuary, and the delegation must be express in the case of the agreements referred to in the first rule of article 17 or extraordinary and improvement works.
- Owners who at the time the meeting begins are not up to date with the payment of all overdue debts with the community and have not judicially challenged them or proceeded to the judicial or notarial appropriation of the amount owed, may participate in their deliberations, although they will not have the right to vote. The minutes of the Meeting will reflect the private owners of voting rights, whose person and share of participation in the community will not be computed for the purpose of reaching the majorities required in this Law.
Article Sixteen.
- The Board of Owners will meet at least once a year to approve the budgets and accounts and on other occasions that the president deems convenient or requested by a quarter of the owners, or a number of these that represent at least the 25% of the participation fees.
- Meetings will be called by the chairman and, failing that, by the promoters of the meeting, indicating the matters to be discussed, the place, day and time it will be held on first or, where appropriate, on second call. , making the citations in the manner established in article 9. The call will contain a list of the owners who are not up to date in the payment of overdue debts to the community and will warn of the deprivation of the right to vote if the assumptions occur provided for in article 15.2.
Any owner may request that the Board of Owners study and decide on any topic of interest to the community; To this end, he will send a letter, in which he clearly specifies the matters that he requests to be dealt with, to the president, who will include them in the agenda of the next Meeting that is held.
If the meeting of the Board does not attend, on first call, the majority of the owners who represent, in turn, the majority of the participation quotas, a second call will be made, this time without being subject to "quorum ".
The Meeting will meet on second call at the place, day and time indicated in the first summons, and may be held on the same day if half an hour has elapsed since the previous one. Failing that, it will be convened again, in accordance with the requirements established in this article, within eight calendar days following the meeting not held, in this case summonses being served at least three days in advance.
- The summons for the Annual Ordinary Meeting will be made, at least, six days in advance, and for the extraordinary ones, with whatever is possible so that it can reach the knowledge of all the interested parties. The Board may meet validly even without the call of the president, provided that all the owners attend and so decide.
Article Seventeen.
The agreements of the Board of Owners will be subject to the following rules:
- The installation of common infrastructures for access to telecommunication services regulated in Royal Decree-Law 1/1998, of February 27, on common infrastructures in buildings for access to telecommunication services, or the adaptation of the existing systems, as well as the installation of common or private systems for the use of renewable energy, or of the infrastructures necessary to access new collective energy supplies, may be agreed upon, at the request of any owner, by a third of the members of the community that represent, in turn, a third of the participation quotas.
The community will not be able to pass on the cost of the installation or adaptation of said common infrastructures, nor those derived from its conservation and subsequent maintenance, on those owners who have not expressly voted in favor of the agreement at the Meeting. However, if they subsequently request access to telecommunications services or energy supplies, and this requires taking advantage of the new infrastructures or the adaptations made to the pre-existing ones, they may be authorized provided they pay the amount that would have corresponded to them, duly updated, applying the corresponding legal interest.
Notwithstanding the provisions of the preceding paragraph regarding the costs of conservation and maintenance, the new installed infrastructure will be considered, for the purposes established in this Law, as a common element.
- Without prejudice to the provisions of article 10.1 b), the performance of works or the establishment of new common services whose purpose is the elimination of architectural barriers that hinder the access or mobility of people with disabilities and, in any case, the establishment of elevator services, even when they involve the modification of the constitutive title, or of the statutes, will require the favourable vote of the majority of the owners, who, in turn, represent the majority of the participation quotas.
When agreements are validly adopted to carry out accessibility works, the community will be obliged to pay the expenses, even when the amount passed on annually exceeds twelve ordinary monthly payments of common expenses.
Carrying out works or actions that contribute to the improvement of accredited energy efficiency through the building's energy efficiency certificate or the implementation of renewable energy sources for common use, as well as the request for aid and subsidies, loans or any type of financing by the community of owners to public or private entities to carry out such works or actions, will require the favourable vote of the majority of the owners, who, in turn, represent the majority of the participation quotas, provided that its cost passed on annually, once subsidies or public aid have been deducted and the financing applied, where appropriate, does not exceed the amount of nine ordinary monthly payments of common expenses. The dissenting owner will not have the right recognized in section 4 of this article and the cost of these works, or the amounts necessary to defray the loans or financing granted for this purpose, will be considered general expenses for the purposes of the application of the rules established in letter e) of article ninth.1 of this law.
- The establishment or suppression of porter services, concierge, surveillance or
other common services of general interest, whether or not they involve modification of the constitutive title or the statutes, will require the favourable vote of three-fifths of the total number of owners who, in turn, represent three-fifths of the participation quotas. The same regime will apply to the leasing of common elements that are not assigned a specific use in the property and the establishment or removal of equipment or systems, not included in section 1, whose purpose is to improve the energy or water efficiency of the property. In the latter case, the agreements validly adopted in accordance with this rule are binding on all owners. However, if the equipment or systems have a private use,
costs established in said section.
- No owner may demand new facilities, services or improvements not required for the adequate conservation, habitability, security and accessibility of the property, according to its nature and characteristics.
However, when by the favourable vote of three-fifths of the total owners who, in turn, represent three-fifths of the participation quotas, agreements are validly adopted to carry out innovations, new installations, services or improvements not required for the proper conservation, habitability, security and accessibility of the property, not required and whose installation fee exceeds the amount of three ordinary monthly payments of common expenses, the dissident will not be obliged, nor will his fee be modified, even in the case of that he cannot be deprived of the improvement or advantage. If the dissident wishes, at any time, to participate in the advantages of the innovation, he will have to pay his share in the costs of realization and maintenance,
No innovations may be made that make any part of the building unusable for the use and enjoyment of an owner, if his express consent is not recorded.
- The installation of a charging point for electric vehicles for private use in the building's car park, provided that it is located in an individual parking space, will only require prior communication to the community. The cost of said installation and the corresponding electricity consumption will be fully assumed by the person or persons directly interested in it.
- The agreements not expressly regulated in this article, which imply the approval or modification of the rules contained in the constitutive title of the horizontal property or in the statutes of the community, will require the unanimity of all the owners who, in their turn, represent the total of the participation fees.
- For the validity of the other agreements, the vote of the majority of the total owners who, in turn, represent the majority of the participation quotas will suffice. On second call will be valid agreements adopted by the majority of attendees, provided that it represents, in turn, more than half of the value of the quotas of those present.
When the majority cannot be achieved by the procedures established in the previous sections, the Judge, at the request of a deducted party in the month following the date of the second Meeting, and hearing the aforementioned contradictors in appearance, will resolve in equity what Proceed within twenty days, counted from the request, making a pronouncement on the payment of costs.
- Except in the cases expressly provided for in which the cost of the services cannot be passed on to those owners who have not expressly voted in favour of the agreement at the Meeting, or in cases in which the modification or reform is made for private use , the votes of those owners absent from the Meeting, duly summoned, who once informed of the agreement adopted by those present, in accordance with the procedure established in article 9, do not express their discrepancy by means of communication to whoever exercises the functions of secretary of the community within 30 calendar days, by any means that allows proof of receipt.
- The agreements validly adopted in accordance with the provisions of this article
obligate all owners.
- In case of discrepancy about the nature of the works to be carried out, the Board of Owners will resolve what is appropriate. The interested parties may also request arbitration or technical opinion in the terms established in the Law.
- The spills for the payment of improvements made or to be made in the property will be borne by the owner at the time of the enforceability of the amounts affected by the payment of said improvements.
- The agreement that limits or conditions the exercise of the activity referred to in letter e) of article 5 of Law 29/1994, of November 24, on Urban Leases, in the terms established in the tourism sector regulations , whether or not it involves a modification of the constitutive title or the bylaws, will require the favourable vote of three fifths of the total owners who, in turn, represent three fifths of the participation quotas. Likewise, this same majority will be required for the agreement that establishes special expenses quotas or an increase in the share of the common expenses of the dwelling where said activity is carried out, provided that these modifications do not suppose an increase of more than 20%. . These agreements will not have retroactive effect.
Article Eighteen.
- The agreements of the Homeowners' Meeting may be challenged before the courts in accordance with the provisions of the general procedural legislation, in the following cases:
- When they are contrary to the law or to the statutes of the community of owners.
- When they are seriously harmful to the interests of the community itself for the benefit of one or more owners.
- When they involve serious damage to an owner who has no legal obligation to bear it or have been adopted with abuse of rights.
- Owners who have saved their vote at the Meeting, those who are absent for any reason and those who have been unduly deprived of their right to vote will be entitled to challenge these agreements. To challenge the agreements of the Board, the owner must be up to date in the payment of all the debts due with the community or proceed previously to the judicial appropriation of the same. This rule shall not apply to the challenges of the agreements of the Board relating to the establishment or alteration of the participation quotas referred to in article 9 between the owners.
- The action will expire three months after the agreement is adopted by the Board of Directors owners, except in the case of acts contrary to the law or the statutes, in which case the action will expire after one year. For absentee owners, said period will be computed from the communication of the agreement in accordance with the procedure established in article 9.
- Challenging the agreements of the Board will not suspend their execution, unless the judge so provides as precautionary, at the request of the plaintiff, after hearing the community of owners.
Article Nineteen.
- The agreements of the Board of Owners will be reflected in a minute book filled out by the Property Registrar in the manner provided by regulation.
- The minutes of each meeting of the Board of Owners must express, at least, the following circumstances:
- The date and place of celebration.
- The author of the call and, where appropriate, the owners who promoted it.
- Its ordinary or extraordinary nature and the indication about its celebration in first or second call.
- List of all attendees and their respective positions, as well as the owners represented, indicating, in any case, their participation fees.
- The agenda of the meeting.
- The agreements adopted, indicating, if this were relevant to the validity of the agreement, the names of the owners who voted for and against them, as well as the participation quotas they respectively represent.
- The minutes must be closed with the signatures of the president and the secretary at the end of the meeting or within the following ten calendar days. From their closing, the agreements will be executive, unless the Law provides otherwise.
The minutes of the meetings will be sent to the owners in accordance with the procedure established in article 9.
Defects or errors in the minutes will be corrected provided that the same unequivocally expresses the date and place of celebration, the owners attending, present or represented, and the agreements adopted, indicating the votes for and against, as well as the shares of participation that respectively supposes and is signed by the president and the secretary. Said correction must be made before the next meeting of the Owners' Meeting, which must ratify the correction.
- The secretary will keep the minute books of the Board of Owners. in addition
You must keep, for a period of five years, the calls, communications, powers of attorney and other relevant documents of the meetings.
Article Twenty.
1. Corresponds to the administrator:
- Ensure the good regime of the house, its facilities and services, and make the appropriate warnings and warnings to the owners for these purposes.
- Prepare with due advance and submit to the Board the plan of foreseeable expenses, proposing the necessary means to deal with them.
- Attend to the conservation and entertainment of the house, arranging for repairs and measures that are urgent, reporting them immediately to the president or, as the case may be, to the owners.
- Execute the agreements adopted in terms of works and make the payments and make the collections that are appropriate.
- Act, where appropriate, as secretary of the Board and keep the documentation of the community available to the owners.
- All other powers conferred by the Board.
Article Twenty One.
- The obligations referred to in sections e) and f) of article 9 must be fulfilled by the owner of the dwelling or premises in the time and manner determined by the Board. Otherwise, the president or the administrator, if so agreed by the owners' meeting, may demand it judicially through the order for payment process.
- The use of the order for payment procedure will require the prior certification of the agreement of the Board approving the liquidation of the debt with the community of owners by whoever acts as secretary of the same, with the approval of the president, provided that such agreement has been notified to the owners affected in the manner established in article 9.
- To the amount that is claimed by virtue of the provisions of the preceding section, the amount derived from the expenses of the prior request for payment may be added, provided that it is documented that it has been made, and proof of such expenses is attached to the request.
- When the previous owner of the home or premises must respond jointly and severally for the payment of the debt, the initial petition may be filed against him, without prejudice to his right to repeat against the current owner. Likewise, the claim may be directed against the registered owner, who will enjoy the same right mentioned above.
In all these cases, the initial request may be made against any of the obligors or against all of them jointly.
- When the debtor opposes the initial request for payment order, the creditor may request the preventive seizure of sufficient assets of the debtor, to meet the amount claimed, interest and costs.
The court will agree, in any case, the preventive attachment without the need for the creditor to provide security. However, the debtor may invalidate the embargo by providing a bank guarantee for the amount for which it had been decreed.
- When the professional services of a lawyer and solicitor are used in the initial application for the order for payment procedure to claim the amounts owed to the Community, the debtor must pay, subject in any case to the limits established in the third section of article 394 of the Law of Civil Procedure, the fees and rights accrued by both for their intervention, whether the former complies with the payment requirement or does not appear in court. In cases where there is opposition, the general rules regarding costs will be followed, although if the creditor obtains a sentence totally favourable to his claim, the lawyer's fees and the attorney's rights derived from his intervention must be included in them, although it was not mandatory.
Article Twenty Two.
- The community of owners will be responsible for their debts to third parties with all the funds and credits in their favour. Subsidiarily and prior request for payment to the respective owner, the creditor may go against each owner who had been a party in the corresponding process for the share that corresponds to the unsatisfied amount.
- Any owner may oppose the execution if he proves that he is up to date in the payment of all the debts due with the community at the time of formulating the requirement referred to in the previous section.
If the debtor pays in the act of request, the costs caused up to that moment will be borne by him in the proportional part that corresponds to him.
Article Twenty Three.
The horizontal property regime is extinguished:
First. For the destruction of the building, unless otherwise agreed. It will be considered produced when the cost of the reconstruction exceeds fifty percent of the value of the property at the time of the accident, unless the excess of said cost is covered by insurance.
Second. By conversion into ordinary ownership or co-ownership.
CHAPTER III
Of the regime of private real estate complexes
Article Twenty Four.
- The special property regime established in article 396 of the Civil Code will be applicable to those private real estate complexes that meet the following requirements:
- Be made up of two or more buildings or plots independent of each other whose main destination is housing or premises.
- The owners of these properties, or of the homes or premises in which they are divided horizontally, participate, inherently to said right, in an indivisible co-ownership of other real estate elements, roads, facilities or services.
- The private real estate complexes referred to in the previous section may:
- Become a single community of owners through any of the procedures established in the second paragraph of article 5. In this case, they will be subject to the provisions of this Law, which will be fully applicable.
- Become a group of communities of owners. For this purpose, it will be required that the constitutive title of the new grouped community be granted by the sole owner of the complex or by the presidents of all the communities called to integrate it, previously authorized by majority agreement of their respective Boards of owners. The constitutive title will contain the description of the real estate complex as a whole and of the elements, roads, facilities and common services. Likewise, it will set the participation fee for each of the integrated communities, which will be jointly responsible for their obligation to contribute to the support of the general expenses of the grouped community. The title and the statutes of the grouped community will be registered in the Land Registry.
- The grouping of communities referred to in the previous section shall enjoy, for all the effects, of the same legal situation as the communities of owners and will be governed by the provisions of this Law, with the following specialties:
- The Board of owners will be composed, unless otherwise agreed, by the presidents of the communities integrated in the group, who will hold the representation of all the owners of each community.
- The adoption of agreements for which the law requires qualified majorities will require, in any case, the prior obtaining of the majority in question in each of the Owners' Meetings of the communities that make up the group.
- Unless otherwise agreed by the Board, the provisions of article 9 of this Law on the reserve fund shall not apply to the grouped community.
The competence of the governing bodies of the grouped community only extends to real estate elements, roads, facilities and common services. Its agreements may not in any case undermine the powers that correspond to the governing bodies of the communities of owners integrated in the group of communities.
- The provisions of this Law, with the same specialties indicated in the previous section, will be applicable to private real estate complexes that do not adopt any of the legal forms indicated in section 2, in addition to the agreements established between the co-owners.
PROVISIONADDITIONAL
- Without prejudice to the provisions adopted by the Autonomous Communities in use of their powers, the constitution of the reserve fund regulated in article 9.1.f) will be adjusted to the following rules:
- The fund must be constituted at the time of approval by the Board of Owners of the ordinary budget of the community corresponding to the annual exercise immediately after the entry into force of this provision.
The new communities of owners will constitute the reserve fund when approving their first ordinary budget.
- At the time of its constitution, the fund will be endowed with an amount not less than 2.5 per 100 of the ordinary budget of the community. To this end, the owners
They must previously make the necessary contributions based on their respective participation quota.
- When approving the ordinary budget corresponding to the year immediately following that in which the reserve fund is constituted, its endowment must reach the minimum amount established in article 9.
- The endowment of the reserve fund may not be lower, at any time during the budget year, than the established legal minimum.
The amounts withdrawn from the fund during the budget year to meet the costs of the works or actions included in article 10 will be computed as an integral part of the fund for the purposes of calculating its minimum amount.
At the beginning of the following budget year, the necessary contributions will be made to cover the amounts withdrawn from the reserve fund in accordance with the provisions of the preceding paragraph.
PROVISIONSTRANSIENT
First.
This law will govern all the communities of owners, whatever the moment in which they were created and the content of their statutes, which may not be applied in contradiction to what is established in it.
Within a period of two years, counting from the publication of this law in the «Official State Gazette», the communities of owners must adapt their statutes to the provisions of it in what is in contradiction with its precepts.
After two years have elapsed, any of the owners may judicially request the adaptation provided for in this provision by the procedure indicated in the second number of article sixteen.
Second.
In the current regulatory statutes of the property by flats, in which the right of first refusal and withdrawal is established in favour of the owners, the same will be understood as modified in the sense of rendering such right ineffective, except that, in a new meeting, and by a majority representing at least 80% of the owners, the maintenance of the aforementioned rights of first refusal and withdrawal will be agreed in favour of the members of the community.
FINAL DISPOSITION
Any provisions that oppose the provisions of this law are hereby repealed. Given at the Palace of El Pardo on July twenty-first, one thousand nine hundred and sixty.
FRANCISCO FRANCO
Sample community site for you
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Things you need to know
The Community Of Owners
Common Elements In Apartment Block Or Urbanisation
When you buy a private property in Spain you often buy some common elements in the apartment block or the urbanisation where your property is situated. You become member of a Community of Owners.
As an apartment block cannot exist without common elements, it will always be constituted a Community.
Row Houses With Shared Plots, Walls And Roof
In a development of row houses, with shared plots, walls and roof, there must also be a Community to attend to common elements.
Urbanisations With Joint Ownership
Even in urbanisations with joint ownership of certain plots, construction or installations, a Community may be needed.
Urbanisations With No Community Of Owners
However, in some urbanisations no Community of Owners has been initiated, and sometimes proves difficult to get one started at a later stage.
The Law
The Law On Horizontal Property
The Communities of Owners in Spain are run by a law from 1960 called "Ley de Propiedad Horizontal" (Law on Horizontal Property).
Originally Made Only For Apartment Blocks - Now Extended To Other Developments
It was originally made only for apartment blocks, but is being used for other kinds of developments where common elements exist.
New Version Of The Law In 1999
A new version of the law came into effect in March 1999, with several important changes.
Translation Of The New Law Available From The FIPE
The Foundation Institute Of Foreign Property Owners has translated the new law on the Communities into various languages, has elaborated a comprehensive Info-File on the subject for anyone who gets elected as leader in a Community or who wants to know the details of the law.
Main Objective Of The Law - Administration And Maintenance Of The Common Elements
The main objective of the law is to regulate the administration and maintenance of the common elements the private owners possess jointly.
The Community cannot have any other tasks.
Title Deed Of New Construction & Its Division
The common elements are described in the "escritura de obra nueva y división horizontal" (title deed for description of new construction and its division into common elements and the various private properties).
Approved Urbanisation Plan
For an urbanisation you may find the reference to the common elements in the approved urbanisation plan (ask in town hall).
Statutes
- Statutes May Or May Not Exist
- The Community may or may not have a set of statutes.
- Statutes May Never Contradict The Law
- The statutes may amplify the law, but never contradict it.
- Unanimous Vote Required To Create Or Change Statutes
- To make new statutes or to change existing ones, you need a unanimous decision among all owners.
Situation Where Statutes Do Not Exist
If there are no statutes, the Community must be run in accordance with the stipulations of the law.Interior Rules
For everyday life in the Community, you may adopt a set of "Interior Rules". They may be agreed or changed by a majority decision made in a General Meeting.
The "Cuota" And The Community Fees
Each property that forms part of the Community has its share (cuota) determined, (normally in the División Horizontal). The yearly fees to the Community are based on this share.
Governing Bodies
Highest Decision-Making Body Of A Community
The highest decision-making body of a Community is the General Meeting. You can have two kinds of such meetings, the ordinary that must be held each year, and the extraordinary, that can be convened whenever a need arises.
Elected Representatives
The General Meeting elects a president, a secretary, an administrator and a treasurer.
The administrator may also act as secretary, while the president may also be administrator.
Powers Of President
The president holds wide powers and represents the Community between General Meetings. He must be one of the owners, while the administrator can be a professional not owning a property in the Community.
Formation Of Board
It may be decided in the statutes to form a board (junta), for making decisions collectively. But do not forget the wide powers granted by law to the president.
Votes And Voting
- Votes Are Based On Each Owners' Share
- At General Meetings decisions are taken by a vote in accordance with the percentage share each owner has been assigned.
First And Second Convocations
We distinguish between first and second convocations. In the first convocation of a General Meeting a majority is needed of the total number of owners and shares to make decisions. If such a quorum is not possible, one passes to the second convocation half an hour later, where the decisions can be taken with a majority of the persons and shares present. In some questions a qualified majority is needed.
Notice Of General Meeting
The General Meetings must be called giving at least 6 days notice, in accordance with the law. Some Communities have in their statutes a longer convocation period, or have taken a decision about this at a General Meeting.
Forwarding Of Notices
If no other decision has been taken, and the owner has not given any other address in Spain for notices, the law foresees the letter convoking the meetings may be directed to the property that forms part of the Community.
Minutes & Decisions Of The Community
All decisions on the meeting must be written down in minutes, and an information on decisions taken sent all members.
Rights Of Those Owners Who Do Not Attend The Meeting
The ones not attending the meeting, have 30 days to protest against what they feel are illegal decisions or decisions contrary to their economical interests and eventually take the matter to court.
Community Fees
Budget & Bills For Fees
The ordinary General Meetings deal with accounting and budget for the Community. Once the budget has been approved, the Community, often the administrator, sends the bills to the individual owners in accordance with their "cuotas".
Payment Is In Advance
You must pay in advance, sometimes for the total year, or for part of the year.
Liability For Unpaid Fees When Property Is Sold
When a private property forming part of a Community is sold, the property is liable for the unpaid fees of the present year and the preceding year, nothing more.
Provision Of The New Law Regarding Outstanding Debt
And the new law provides that a certificate on whether a property has any debt before that property can be sold in a public deed. The Community must take legal action against non-payers to force them to pay before the debts become prescribed.
Obligation Of Owner To Pay Fees
If you are part of a legal Community, you are obliged to pay the fees.
Right Of Community To Collect The Fees
The Community is granted the right by the law to collect them.
Seizure Of Property For Non-Payment Of Fees
The courts may now in an abbreviated procedure place an "embargo" (a seizure) on the inscription of a property for unpaid Community fees, and later even place it for sale at public auction.
Registration And Books
Registration In The Property Register
The most important registration of a Community is the one in the property register. Normally the Community is mentioned in the "declaración horizontal". You can only register a Community if there are common elements belonging jointly to all private owners.
Books For The Accounting & The Record Book For Meetings
In addition to the books for the accounting, a Community must have a record book for meetings (libro de actas). You can buy such a book with numbered pages in the bigger bookshops, and have it stamped by the property register. All reports from General Meetings must be inserted in this book, so members can use their right to read and ask copies from them, from the secretary/administrator.
Get To Know The Legislation On Communities
WE RECOMMEND ALL FOREIGN MEMBERS OF COMMUNITIES IN SPAIN TO GET TO KNOW BETTER THE LEGISLATION ON COMMUNITIES AND HOW THEY FUNCTION, AND NOT TRY TO USE THE CUSTOMS OF THEIR OWN COUNTRY ON THE RUNNING OF THE COMMUNITY.
The Presidents Role
The piece of legislation which obligates every community of owners to elect a President is probably not the most enlightened document that’s ever been written. The fact is that, although each community must have a President, there are no clear criteria which describe the duties or responsibilities of the elected person.