In today’s article we would like to discuss the nullity of the ban on tourist rentals agreement in a Community of Owners, and a recent successful court case. Our firm represented a buyer who purchased a property, started to rent it out as a tourist rental and faced the opposition of the Homeowners’ Association. In its ruling, the court has recognised our client’s right to carry out this activity normally.
Ban on tourist rentals. Horizontal Property Law.
Article 17.12 of the Horizontal Property Law (LPH) allows communities to limit or condition tourist rentals by 3/5 of the votes and quotas. However, when the Board of Owners approves a “prohibition” of these characteristics, we must ask ourselves: What happens to the new owners?. Do these limitations also apply to people who purchase a property after the prohibition?.
The registration in the Land Registry is key.
Certainly, the Meeting of Owners can establish limitations on the use or destination of the dwellings in a community. But these prohibitions will only be enforceable against new owners if previously registered in the Land Registry. This is established in article 5 of the Horizontal Property Law, which states that these limitations constitute “a private statute that will not be prejudicial to third parties if it has not been registered in the Property Register”.
Seems logical and reasonable that a limitation to the right of ownership is public and can be known in advance by any purchaser. It would not make much sense that buyers request dozens and dozens of minutes of previous meetings from vendors in order to find out whether or not there is any relevant limitation on the property they intend to purchase.
The specific case. Ban on tourist rentals by the Internal Regime.
Our client bought a property in an Urbanisation in Jávea. She obtained the tourist licence from the Generalitat Valenciana and started renting it out through this modality. After the acquisition, the Community of Owners informed her that this type of rental was prohibited by the Internal Regulations. And required her to cease the activity or the community would initiate legal proceedings against her. After studying the case, we voluntarily went to court to confirm whether or not she had the right to carry out the tourist activity.
The court ruling. Declaration of nullity of the agreement prohibiting tourist rentals.
The Court of Denia, as requested in our lawsuit, has confirmed in its judgement that:
.-The instrument used by the community for the ban on tourist rentals was not correct. And the Internal Regulations (art. 6 LPH) are intended to regulate the details of cohabitation, the use of the common services, etc. But cannot establish limitations or prohibitions to the right of ownership. For this, the appropriate channel are the Statutes (art. 5 LPH).
.-Furthermore, the prohibition established by the Community does not apply to our client because at the time of becoming the owner, the limitation was not duly registered in the Land Registry.
.- Finally, the nullity of the ban on tourist rentals is declared null and void, and the Community must allow our client to carry out the tourist activity normally. You can see this court decision clicking in this LINK.
Conclusion.
At White Baos Lawyers we are experts in Horizontal Property Law and tourist rentals. If there is a conflict in your community of owners related to tourist rentals, please do not hesitate to contact us. We will study your case and offer you expert legal advice on the subject.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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