Can the owners' association ban a holiday let?

Question

José Manuel Alburquerque · Accepted Answer

Yes. In Catalonia, the owners' association can ban holiday lets by amending its by-laws with the favourable vote of four-fifths of the owners, who must also represent four-fifths of the ownership shares (“cuotas”). Absent owners who are notified of the resolution and do not object in writing within a month count as votes in favour. For the ban to be effective against those who buy later, it must be formalised in a public deed and entered in the “Registro de la Propiedad”, the Land Registry. It cannot be applied to an owner who already had a holiday let up and running and opposed the resolution, but it can be applied to those who did not object and to future buyers. How it is approved The matter must be on the agenda of the owners' general meeting. Four-fifths of all the owners entitled to vote and of all the shares are needed, not of those present at the meeting. The resolution is notified to absent owners. If within a month they do not object in writing to the secretary, in a way that leaves a record, their vote counts in favour. The clause must be clear and say what is banned, for example tourist accommodation (“viviendas de uso turístico”) and holiday rentals (“alquiler vacacional”). The resolution is formalised in a public deed and entered in the Land Registry. In Catalonia, the national “Ley de Propiedad Horizontal”, Spain's condominium act, which in the rest of Spain allows holiday lets to be restricted or banned with a three-fifths majority, does not apply. What applies is the “Código Civil de Cataluña”, the Catalan Civil Code, which requires four-fifths. Who is affected According to the “Tribunal Superior de Justicia de Cataluña”, the High Court of Justice of Catalonia, in its judgment of 13 September 2018, the ban applies as follows: It cannot be applied to an owner who already had the holiday let operating with its authorisation and opposed the resolution, by voting against it or challenging it. That owner can carry on the activity for as long as they keep their tourist authorisation. It binds an owner who did not object, even if they already had the holiday let. To stay outside it, they must object expressly. It also binds anyone who buys after it has been registered. The owners' association's ban and the holiday let licence are different things. A flat with a licence can be prohibited by the by-laws. Conversely, a resolution of the owners' association does not give anyone a licence. If a holiday let causes a nuisance Even without a ban, the owners' association can take action against a specific flat that causes nuisance or damage: The chair, on their own initiative or at the request of a quarter of the owners, must formally require the owner and, where applicable, the occupier to stop that activity. The demand must be made in a way that provides reliable proof, for example by “burofax” (a certified letter with proof of content), because it is filed with the court claim. If they carry on, the owners' general meeting can resolve to sue. The court can ban the use of the flat for up to two years and terminate the occupier's contract. Before suing, an attempt at negotiation must in principle be made. If the flat is operating without being entered in the “Registre de Turisme de Catalunya”, the Catalan tourism register, it can be reported to the town council or the Generalitat de Catalunya (the Catalan government). If the by-laws ban holiday lets, the owners' association can follow this same route without having to prove any nuisance. If there is no ban, the courts point out that tourist use is not a nuisance in itself, so specific nuisance must be proved.