In a post dated 8-4-2024, "Change of destination and statutory limitations regarding tourist housing", [URL: HERE] I collected the state of the art up to that moment, as a result of different Supreme Court rulings that referred to particular cases, based on the recognition of the full freedom of owners to give the property of their property the use they want, without being deprived of the use of their property right in the way they consider most appropriate, unless such use is legally prohibited or the change of destination is expressly limited in the regime of said horizontal property, in its constitutive title or its statutory regulation.
After that date, and although there were other judgments of our High Court, the criterion did not change at all, not even STS 1232/2024, of 3 October, which ruled for the first time on the scope of the term "limit" contained in paragraph 12 of article 17 LPH (introduced by RDL 7/2019, of 1 March, of urgent measures in the field of rent and housing, allowed the prohibition of such use or whether, on the contrary, a decision of this kind constituted a legal act contra legem (contrary to the provisions of the law), challengeable by means of art. 18 LPH, since the terms "condition" or "limit" would not include prohibiting.
The question was resolved in favour of understanding that these terms ("limit", "condition") included the possibility of prohibiting the use of dwellings for tourist accommodation —which on the other hand had already been peacefully accepted by the Land Registries after the Resolution of the DGSJFP of 5-11-2020, although it was not yet peaceful in the Provincial Couts—, authorizing the communities of owners to prohibit the exercise of this activity by a qualified majority of three-fifths.
The issue has experienced, however, a 180º turn as a result of LO 1/2025, of January 2, on measures in the field of efficiency of the public justice service (BOE 3-1-2025), which today, April 3, 2025, comes into force, at least on this point.
To focus, the activity to which it refers is that defined in section e) of article 5 of Law 29/1994, of 24 November, on Urban Leases, in the terms established in the tourism sector regulation, which refers to: "The temporary transfer of use of the entirety of a furnished and equipped dwelling in conditions of immediate use, marketed or promoted in tourism supply channels or by any other means of marketing or promotion, and carried out for profit, when it is subject to a specific regime, derived from its tourism sector regulations". These are known as "Tourist Homes".
And to sum up, before the possibility of using the home for this activity was allowed if it was not expressly prohibited; From today it will be prohibited if it is not expressly allowed by the community, except for those who have already been exercising it. And the Law does so in its fourth final provision, which modifies the Horizontal Property Law, stating:
1st.- A section 3 is added to article seven of the LPH, providing that the owner of each dwelling who wishes to use it for tourist activity must first obtain the express approval of the community of owners, under the terms established in article 17.12 LPH.
2nd.- Said precepts maintain the same qualified majority of three-fifths that already existed for the agreements by which said activity was limited or conditioned, to adopt the agreements by which its exercise "is approved, limited, conditioned or prohibited", whether or not it involves modification of the constitutive title, without, it affirms, such agreements being able to have retroactive effects.
3rd.- Finally, a new second additional provision is added to the LPH, establishing that those owners who were already carrying out this activity prior to the entry into force of this Organic Law (today, April 3), who had previously taken advantage of the tourism sector regulations, may continue to carry out the activity under the established conditions and deadlines.
No doubt doubts and questions will arise in the wake of this new regulation limiting the right to property, limitations that must always be understood in a restrictive sense, and that will be solved over time, but the general rule is the one expressed, and the violation of what is thus provided allows the community of owners, from a civil point of view, the exercise of the injunction action provided for in the same article 7 in which this new section 3 has been inserted, which prohibits such activity, unless expressly and previously authorized at the community meeting.
José Ignacio Martínez Pallarés
Lawyer
