MADRID 7 Oct. () –
The Supreme Court has endorsed that the communities of owners prohibit tourist rentals by a majority of 3/5, thus ruling out that it must be agreed upon unanimously, as it has been interpreted until now by the majority of provincial audiences.
The Plenary Session of the Civil Chamber has unanimously issued two rulings in which for the first time it rules on the interpretation and application of article 17.12 of the Horizontal Property Law (LPH), introduced by a royal decree of 2019.
Said provision establishes that “the agreement by which the exercise of the activity is limited or conditioned (…) will require the favorable vote of three-fifths of the total owners who, in turn, represent three-fifths of the participation fees”.
These two rulings resolve the controversy between the provincial courts, evidenced in the two matters on which the TS now rules and which resolved in the opposite direction, on whether the prohibition of tourist rentals should be agreed upon by that qualified majority or by unanimity.
The First Chamber starts from its jurisprudence in which it declares legal the statutory prohibition on the rental of housing for tourist use, while recalling that the prohibition on the use of private elements in the horizontal property regime is legitimate and in accordance with the Constitution. .
Next, the Supreme Court interprets the expression “limit or condition” contained in article 17.12 LPH, rejecting that it is a case of interpretation of a statutory norm under restrictive conditions.
Thus, it concludes that, taking into account the grammatical and semantic criteria and its literality, the term “limit” does not exclude the prohibition. “This conclusion is confirmed taking into account the teleological criterion, the spirit and purpose of RDL 7/2019, which is expressed in its preamble that justifies the adoption of urgent measures in the difficulties of access to rental housing due to the increase in rents. due, among other factors, to the growing phenomenon of tourist rentals,” indicates the First Chamber in a press release.
The magistrates also consider that “the attribution of this power of prohibition with the reinforced majority is a measure proportionate to the interests in conflict.”
As additional reasoning, the Civil Court points out that, if this double majority of three-fifths is not admitted, a vote against by the owner of the apartment in which the activity is intended to be carried out would be sufficient to prevent the adoption of the agreement.
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