The communities of owners can prohibit the commercialization of vacation homes, although there is no unanimity on the matter, and affecting the decision to future owners. This has been established by the General Directorate of Legal Security and Public Faith when resolving an appeal by a community of neighbors against the qualification of a registry of the property of Santa Cruz de Tenerife.
Specifically, the registry had refused to register a new statutory rule, according to which “it is expressly prohibited, and for all purposes, the marketing of the properties in the property as vacation homes.” And this because he understood that they had to give their consent to the modification of the statutes who appeared in the Registry as owners since the registry holders did not coincide with all the owners.
In addition, the registrar had objected because certain owners had registered their acquisition after the adoption of the agreement, and it had not been proven that they had approved said statutory modification.
However, the General Directorate of Legal Security and Public Faith has ruled that unanimity is not required to adopt agreements that limit or condition the exercise of what is known as “rental or tourist exploitation of housing”, whether or not they involve modification of the Constitutive title or statutes of the community of owners.
In these cases, the exception introduced in the Horizontal Property Law by the Royal Decree of urgent measures in the matter of housing and rent that the Government approved in 2019 governs. This norm reduces the majority to the favorable vote of three-fifths of the total of the owners who, in turn, represent three-fifths of the participation fees to adopt the agreement.
Registration of the agreement
In the opinion of Jose Miguel Tabarés, vice dean of the College of Registrars of Spain, it is a “correct resolution”, although it draws attention to two issues. The first has to do with “acquired rights.” And it is that, if an owner already has a tourist home with the corresponding administrative license and has stated that circumstance in the registry, “we could have a discussion” about whether the rest of the neighbors can prohibit the homes for tourist use.
But leaving this question aside, the lawyer explains that once the owners agree to the modification of the statutes and proceed to their registration in the registry, the subsequent buyers would be affected by the prohibition. However, if they do not carry out the registration, the agreement would only bind the neighbors, but not the third party acquirers, who could claim that they were not aware of the agreement and that, therefore, it does not bind them.
The second question highlighted by the vice dean refers to how the majority of three fifths is obtained. And it is that, if the agreement is adopted “without the formal requirements” that the legislation requires, it may decline, with the consequence of being necessary a new vote on the matter.
In this sense, Immaculate Alive, Professor of Civil Law at the University of Seville, explains that when not all owners attend the meeting in which tourist leases are vetoed, “the secretary must send a copy of the minutes to those who are absent so that it is recorded that they have been received and, furthermore, find out if 3/5 ”has been reached.
If within 30 calendar days they do not express their discrepancy to the secretary, they are counted as favorable votes, so that if the legally established quorum of 3/5 is reached with those attending the meeting, the agreement would be “valid”, says Vivas.
In any case, “once the 30-day period has elapsed, it is necessary to make the community agreement a public deed and register it in the Property Registry so that it is enforceable against third party purchasers,” says the professor.