2023-12-12 21:31:25
Limit to the proliferation of tourist homes. The Supreme Court has endorsed in two rulings that tourist apartments are prohibited in communities of owners in which, their statutes expressly prohibit the use of these apartments to carry out an economic activity. The Civil Chamber has ruled in favor of two neighborhoods, one in San Sebastián and the other in Oviedo, and has ordered the cessation of tourist rental activity in their buildings.
In the two rulings, the Chamber has explained that in none of the cases examined is it about applying the new Horizontal Property Law. A rule that provides that the agreement that limits or conditions the exercise of this activity will require the favorable vote of three-fifths of the total owners. On the other hand, the magistrates prioritize that in the community statutes there be an express prohibition of allocating the apartments of the block for tourist use.
In the case of the Oviedo building, the Court agrees with the community of owners of La Jirafa Élite and orders the cessation of the tourist rental activity that is carried out in two buildings of its 20 floors, with an independent access portal to the homes and another to the premises located on the third to seventh heights.
The ruling with a presentation by José Luis Seoane admits the application of the block’s social statutes when there is a prohibition, the validity of which is not disputed, by which in the independent apartments of the building “professional, business, commercial or commercial activities may not be carried out. of any type, reserving its use to exclusively residential use.
For this reason, the activity carried out by the defendant “has a business and commercial nature, provided by a commercial company, and, therefore, we must agree with the plaintiff, in the sense that there is a registered statutory prohibition, which “prevented the destination of the aforementioned properties as homes for tourist use, subject to the legal regime of Decree 48/2016, of August 10, on vacation homes and homes for tourist use in Asturias.”
Economic activity
The high court reaches the same conclusion in the other resolved matter that affects some homeowners of a building in San Sebastián, located on Paseo del Urumea 10-11-12 and 13. The owners sued their community in order to that the prohibition contained in the building regulations by the developer, and included in the housing purchase and sale contracts, was annulled, which established that the carrying out of any economic activity, office, office, consultation or clinic, was “strictly prohibited”, except if the portal’s own subcommunity authorized it unanimously.
The Chamber underlines, in view of the tourism sector legislation of the Basque Country and the applicable municipal ordinances, “the condition of economic activity” that the rental of homes that are offered or marketed as vacation accommodation and that are temporarily transferred by the owner, operator or manager and marketed directly by itself or indirectly, to third parties, repeatedly or habitually and in exchange for economic consideration.
Therefore, the ruling adds that the performance of this activity entails a series of requirements and conditions, including those of operation, “which implies the provision of a series of services and the assumption of certain duties inherent to the marketing of homes for tourist use.
In this sense, the high court has recalled that the tourism sector regulations of the Basque Country “expressly” highlight the difference with which the marketing of tourist stays in homes, short-term accommodation or those offered for vacation use is contemplated with the rental of living place. Thus, it concludes that this interpretation favorable to the plaintiffs is in accordance with the jurisprudence of the Civil Chamber that the limitations “must be clear, precise and express.”
In his opinion, “the inclusion of tourist activity in the statutory prohibition is perfectly consistent with its letter and spirit, which is none other than prohibiting economic activity with a commercial, professional or business nature from being carried out in homes, as is the case with tourist apartments.
#Supreme #Court #endorses #neighborhood #communities #prohibit #tourist #apartments #buildings