Tourist-use dwellings and owners' associations in Catalonia: the four-fifths majority, acquired rights and the effectiveness of by-law prohibitions
The prohibition by owners' associations of the tourist use of privately owned units has become one of the central issues in Catalan condominium law. The regime of the “Código Civil de Cataluña” —the Catalan Civil Code—, which allows such prohibitions to be approved by a four-fifths majority, has become settled in contrast with the Spanish state model of art. 17.12 LPH —the “Ley de Propiedad Horizontal”—. The case law of the “Tribunal Superior de Justicia de Cataluña” —the High Court of Justice of Catalonia— and the recent decisions of the “Dirección General de Seguridad Jurídica y Fe Pública” —the directorate-general that rules on appeals against land registrars' decisions— have refined key questions such as registration at the Land Registry, the non-retroactivity of the restrictions and the protection of the acquired rights of those already carrying on the tourist activity. This article examines, from a practical standpoint, the majority required, enforceability against third parties, the distinction between owners before and after the resolution, and the role of the registrar's review (“calificación registral”).
In Catalonia, condominium law —“propiedad horizontal”— is governed by Book Five of the “Código Civil de Cataluña” —the Catalan Civil Code, CCCat—, which contains its own complete regime for owners' associations. Art. 553‑26 CCCat governs the majorities required to adopt resolutions, distinguishing between unanimity, qualified majorities and a simple majority. The prohibition or restriction of uses of privately owned units, such as tourist use, falls among the resolutions requiring a qualified majority of four fifths of the owners and of the participation quotas, not unanimity. That legislative choice departs from the state model of the “Ley de Propiedad Horizontal” —the LPH, the Spanish national condominium act—, whose art. 17.12, introduced in 2019, allows associations to prohibit or limit the tourist use of dwellings by a three-fifths majority, subject to certain rules on non-retroactivity and compensation.
The “Dirección General de Seguridad Jurídica y Fe Pública” —the DGSJFP—, in its Decision of 22 January 2026 concerning a property in Barcelona, has expressly recalled that art. 17.12 LPH, a provision of state law, is not to be applied in Catalonia, because condominium law has been fully taken over by Catalan civil law. The majority applicable in order to prohibit tourist use is the four-fifths majority of art. 553‑26 CCCat, and the rules on effectiveness and non-retroactivity must be drawn from the scheme of the Catalan Civil Code itself and from the case law of the “Tribunal Superior de Justicia de Cataluña” —the TSJ, the High Court of Justice of Catalonia—. That statement has significant practical consequences: Catalan associations may not avail themselves of the lower three-fifths majority of the LPH, or of its specific rules, but must observe the enhanced four-fifths quorum and the Catalan doctrine on acquired rights.
2.The four-fifths majority and the content of the by-law prohibition
The prohibition of the tourist use of privately owned units is normally given effect through an amendment of the association's by-laws introducing a clause restricting the units exclusively to use as a primary or permanent residence, or an express prohibition on using the flats or commercial premises as tourist-use dwellings, holiday lets or similar activities. The resolution must be adopted at the owners' general meeting, having been included in the agenda, and requires the favourable vote of four fifths of the owners entitled to vote, who must at the same time represent four fifths of the participation quotas. Art. 553‑26 CCCat further provides a mechanism for counting the votes of absent owners by notifying them of the resolution and allowing one month to object, so that the qualified majority may be reached by adding in the position of those who do not object once notified.
The case law of the TSJ of Catalonia has confirmed that a general prohibition of tourist use, affecting all privately owned units, may be approved by that qualified majority without any need for unanimity or for the individual consent of each owner. It is a by-law restriction on use that falls within the social function of property and the need to preserve community life, safety and quiet enjoyment in the building. The wording of the clause must be clear and precise, avoiding ambiguity as to which activities are prohibited, and it must be entered in the “Registro de la Propiedad” —the Land Registry— in order to be enforceable against third-party purchasers.
3.Registration at the Land Registry and enforceability against third parties
Art. 553‑11 CCCat provides that the by-laws and any amendments to them must appear in the deed of constitution or in a subsequent public deed and that, in order to be enforceable against third parties, they must be entered in the Land Registry. Registration serves a function of publicity and legal certainty: it allows purchasers to know of the restrictions on use before buying and prevents hidden encumbrances. The case law of the TSJ of Catalonia has been particularly clear on this point. In its judgment of 24 January 2019, concerning an association that had prohibited tourist use, the Court distinguishes between owners who purchased before and after the prohibition was registered. As against later purchasers, the registered by-law clause is fully enforceable: they cannot plead ignorance of it and must comply with the prohibition, even where the transferor had previously obtained an administrative authorisation for tourist use. The administrative authorisation does not constitute an autonomous right in rem transferred with the property, but an enabling title in the administrative sphere, subordinate to the association's civil-law restrictions.
The Directorate-General has adopted this doctrine in its decisions of 19 and 22 January 2026, ruling on appeals against land registrars' decisions (“calificaciones registrales”) that had refused to allocate short-term rental registration numbers because registered by-law prohibitions were in place. The DGSJFP has stressed that, where the by-law prohibition is registered before the purchase, the registrar must treat it as an “elemento obstativo” (an obstacle to registration) preventing the registration of tourist or short-term letting activity, and that a prior municipal licence does not validate an activity contrary to an enforceable civil-law restriction. Registral public faith (“fe pública registral”) protects reliance on the content of the Register, so that what is registered is presumed valid and effective as against third parties.
4.Non-retroactivity, acquired rights and dissenting owners
The most delicate question is that of owners who were already carrying on the tourist activity before the by-law prohibition was approved. Here the case law of the TSJ of Catalonia has developed a nuanced doctrine on non-retroactivity and acquired rights. In its judgment of 13 September 2018, the Court addresses the case of an owner who had obtained the administrative authorisation to put her dwelling to tourist use before the association approved, by a four-fifths majority, an amendment to the by-laws prohibiting tourist use. The owner expressly objected to the resolution at the general meeting and challenged it in court. The TSJ declares the resolution valid and capable of registration, but holds that it is not enforceable against the claimant, who is not bound by the prohibition and may continue to put her dwelling to tourist use.
The Court distinguishes between the validity of the resolution, which operates for the future and binds the association as a whole, and its effectiveness as against those who had already acquired their property free of the restriction and had consolidated a legitimate legal position. Relying on the principle of civil freedom and on the protection of legitimate expectations, the TSJ takes the view that the prohibition cannot be applied retroactively so as to deprive of a use already permitted a person who purchased the dwelling without that restriction and who, moreover, objected to the resolution. The amendment to the by-laws will be effective and enforceable against future purchasers, once registered, and against current owners who did not object, but not against a person who exercised her right of objection and had already obtained the tourist licence.
By contrast, in its judgment of 24 January 2019, the TSJ rules on an owner who purchased the dwelling after the by-law prohibition had been registered, even though the transferor had obtained the tourist licence beforehand. In that case, the Court holds that the prohibition is fully enforceable against the purchaser, who cannot invoke acquired rights or the transferor's licence. The key lies in the time of purchase and in the entry at the Land Registry: a person who buys after registration knows, or is in a position to know, of the restriction and assumes the risk of not being able to carry on the tourist activity.
In its Decision of 22 January 2026, the DGSJFP takes up this distinction when analysing the situation of an owner who claimed to have obtained the tourist licence before the by-law prohibition. The Directorate-General points out that for the prohibition to be unenforceable against a pre-existing owner two conditions must be met: that the owner was already carrying on the activity and that he had objected to the association's resolution prohibiting it. Where there is no record of a challenge or of an objection, the resolution and its registration are fully valid and enforceable, and the registrar must refuse to allocate the short-term rental registration number.
5.By-law prohibition, cessation action and community life
The by-law prohibition of tourist use does not exhaust the tools available to the association against activities that disturb community life. Art. 553‑40 CCCat provides that owners and occupiers may not carry out, either in the privately owned units or in the rest of the building, activities contrary to normal community life or that damage or endanger the building, and it empowers the chair to demand that they cease and, should they persist, the general meeting to bring the cessation action (“acción de cesación”) before the courts. That action may lead to deprivation of the use of the privately owned unit for a period of up to two years and, where appropriate, to the termination of the lease or of any other contract conferring rights of occupation.
Catalan case law has stressed that the tourist activity is not, in itself, a nuisance or contrary to community life. The judgment of 13 September 2018 recalls that the abstract prohibition of the tourist activity does not mean that it is inherently a nuisance, and that any problem of community life must be dealt with case by case through the cessation action for nuisance activities. The association may prohibit tourist use on grounds of policy as to community life and the preservation of the residential character of the building, but the imposition of civil sanctions such as deprivation of use requires proof of specific conduct in breach of the rules of community life.
In this sense, the coexistence of the by-law prohibition and of the cessation action allows the association to act on two levels. On the one hand, it can prevent new tourist activities from being set up by means of the general prohibition, effective against later purchasers and against owners who had no acquired rights. On the other, it can respond to existing tourist activities that give rise to nuisance, using the cessation action to restore community life, without having to prohibit tourist use in the abstract.
6.Conclusions
The prohibition of tourist-use dwellings by owners' associations in Catalonia rests on a civil-law regime of its own, which requires a four-fifths majority to amend the by-laws and prohibit the tourist use of privately owned units. Registering the prohibition at the Land Registry is essential for it to be enforceable against third-party purchasers and for legal certainty in property transactions. The case law of the TSJ of Catalonia and the decisions of the DGSJFP have shaped a clear doctrine on non-retroactivity and acquired rights: the prohibition is valid and effective for the future, but it cannot be applied retroactively so as to deprive of a use already permitted a person who purchased the dwelling without the restriction and objected to the resolution; by contrast, it is fully enforceable against those who purchase after registration or who do not object.
The non-application of state art. 17.12 LPH in Catalonia reinforces the autonomy of Catalan civil law and requires associations to observe the enhanced four-fifths quorum, which calls for careful management of participation and of the information given to owners. The interplay between the by-law prohibition, registration at the Land Registry, the cessation action and the administrative penalty regime governing tourism forms a complex but coherent framework for addressing the challenges that the proliferation of tourist-use dwellings poses for community life and the residential market. For legal practitioners, it is essential to take account of the chronology of events, the time of purchase, the existence of licences and the registration of the restrictions, as well as the settled doctrine of the TSJ of Catalonia and of the DGSJFP, when advising associations and owners on the viability and effectiveness of by-law prohibitions of tourist use.
