NEW REGULATIONS FOR HOLIDAY HOMES IN ANDALUSIA IN 2024
Are you renting out an URBAN Andalusian property to tourists? Are you planning to do so in the future? Or are you an intermediate who rents out holiday homes in the name of the property owner? Then please read this article to the end, as new regulations for holiday homes recently have been put in place by the Junta de Andalucia. You can also ask for our summary PDF for applying for the RTA-license.
Over the last few years, tourism in some Andalusian cities and towns has grown nonstop. Property sales, attracted partially by the boom in holiday homes and the income that can be obtained from these activities have had a direct effect on the high prices of traditional rental properties.
Due to this market situation for holiday lets, the Regional Government of Andalusia published a new Decree 31/2024, of 29 January, which entered into force on 22 February 2024. This Decree repeals and amends a few articles of the Decree published in 2016, which regulated holiday lets in Andalusia for the first time.
For the first time, this new regulation makes it possible for City Councils to limit holiday lets for reasons of general interest. Likewise, from this moment, companies or individuals managing holiday lets in one or more properties become liable to the administration and users of the properties. And also for property owners, there are various changes to adapt to.
The high demand for property sales and the attractive business of holiday lets
Property purchases by individuals, companies and investment funds in strategic locations with a strong demand for tourism have had a direct effect on property prices. Malaga and other municipalities in the Costa del Sol, such as Marbella, Benalmádena, Fuengirola, Mijas or Nerja, for instance, have seen property prices reach historic highs.
We should especially mention foreign investors, who target property investments in cities like Malaga, Seville and Granada, as well as other municipalities in the Costa del Sol and Costa Tropical. The number of holiday homes offered as holiday lets, due to this property frenzy, hasn’t stopped growing in some cities. This has led to increasing costs for traditional lets for residents, with very high prices, along with certain problems of tourist overcrowding in some areas, where residents have been slowly disappearing.
To what holiday homes in Andalusia does this Decree apply?
This Decree applies to homes equipped for immediate use, intended to be let for less than two months, where accommodation services are offered in exchange for paying a price, habitually and for tourism purposes. Tourism purposes are understood to occur when the home is marketed or advertised in tourism promotion channels, such as travel agencies, tourism companies and channels that make it possible to book accommodation.
Does this Decree apply to holiday lets in non-developable or rural land?
This Decree does not apply to homes located in a rural environment, i.e. homes in non-developable or rural land. Using these homes as holiday lets is governed by different regulations.
When can a home not be used as a holiday let in Andalusia?
Homes to be let as holiday homes must comply with a series of requirements to be registered in the Andalusian Tourism Register (RTA) and carry out activities related to holiday lettings.
Ban on the use of social housing (VPO) in the regulations of holiday homes
These homes cannot be used as holiday lets. However, it should be noted that, if you’re thinking about buying a property and the Property Register report shows a VPO qualifier, this classification is often outdated and its expiry can be requested. This is something that happens often, as VPO classification only lasts a certain amount of time. However, in many cases, the VPO qualifier continues to appear in the Property Register report, even if the property lost that legal status due to the passage of time.
Inability to operate holiday lets if the Owners’ Association expressly prohibits the use of the home for holiday letting
If the property you’d like to purchase or let is part of an Owners’ Association that expressly prohibits this activity in its by-laws (founding statutes), the home cannot be used as a holiday let. It’s uncommon to find this prohibition in older buildings or developments, since holiday lets “didn’t exist” until recently and, therefore, this wasn’t regulated in the by-laws.
However, the Community of Owners can at any time modify the Statutes and introduce the prohibition of tourist vacation rentals. Nevertheless, this would not apply to those homes that were already registered in the RTA prior to the prohibition.
NOTE: However, there is a dilemma regarding the percentage necessary to modify the Statutes of a Community of Owners for this specific limitation. Some court rulings establish that a majority of 3/5 (=60%) of the total owners would be sufficient and others establish that it is necessary for unanimity (100%) of all owners. From our legal interpretation of the law, unanimity would be necessary. In the future, we understand that it will be clarified.
Maybe in the light of this contradiction, you decide to already apply for your RTA even allthough you don´t actually rent out (yet). This might be recommendable, but you need to know that in theory the authorities have the right to cancel your RTA when you’re not submitting your rental profit in your income tax declaration (either IRPF or IRNR).
The special case of a ban on holiday lets in the by-laws of new builds
It is usually in new housing developments where the by-laws (´estatutos´) can ban this activity expressly more easily. In this case, it’s important for you or your lawyer to review the by-laws thoroughly. If you’re thinking of buying a newly build home (or off-plan) and intend to use it as a holiday let, you should know that it’s possible that, once the development has been built, the by-laws may prohibit the use of the homes as holiday lets. In other words, when you sign the private sales contract, it’s very likely impossible to know whether the by-laws will prohibit holiday lets once the developer forms the Owners’ Association.
Ban on holiday letting for homes that are incompatible with the urban planning regulations of the municipality where they are located
Homes on urban residential land with a Habitability Certificate or First-Occupancy Certificate (LPO) may be used as holiday lets. The same applies to homes that, when built, were not contrary to urban planning in the municipality and hold an unregulated resolution or an equivalent LPO certificate, if these were built prior to 1986.
Regarding this matter of the requirement to have an LPO or Habitability Certificate, the new Decree has eliminated the need to have an LPO and has replaced this with the requirement for homes to comply with urban planning regulations. Perhaps this change is designed so that, in the future, other homes lacking an LPO for different reasons, can access the RTA, for instance, if the City Council implements a certain procedure to obtain a license to use a home for tourism purposes, even if such resolution is not an LPO as such. If the City Council creates such a specific procedure and a home without an LPO obtains a license for tourism purposes, it would be understood that the home complies with the urban planning regulations of the municipality. Over the next few months, we shall see whether any City Councils implement such a procedure.
Therefore, it will still be advisable to submit the LPO or Habitability certificate to register your property in the RTA, but you can also prove that you fulfill the urban planning regulations with any other document or technical certificate.
Ban on holiday letting for urban homes recognized as Equivalent to Unregulated (DAFO)
Homes built on urban land after 1986, which do not comply with the planning regulations of the municipality where these are located, may be considered homes with a status equivalent to unregulated. If recognized as such, these may only be used as holiday lets with express authorization from the City Council for such change in use.
What should I do to meet the criterion of the regulations of holiday homes in Andalusia?
To use a home as a holiday let, it’s necessary for the person or entity intended to engage in such activity to register the property in the Andalusian Tourism Register (RTA). To complete this registration, it’s necessary to submit an affidavit (DR) electronically, certifying compliance with the requirements provided in the Decree, and the property may be used as a holiday let after the submission of the DR. The Decree establishes the minimum contents that the affidavit must include, with one of the new features being the requirement to specify whether the home is let year-round or for specific periods, which must be specified in the affidavit (declaration).
NOTE: While publishing this news article, C&D Solicitors has submitted a first RTA-application through the new web form. Although it concerns a responsibility declaration, the system still asks for the applicant to upload the concerning documents. The form states that if you don´t upload the correct documents within 10 days, the application will be cancelled.
What happens if I don’t have a Habitability Certificate or First-Occupancy Certificate?
There are different processes to obtain the first-occupancy certificate for a home:
How to get an LPO in Andalusia for homes built prior to 1986
This is the simplest and cheapest process, as all urban homes built in Andalusia prior to 1986 with no subsequent modifications are considered homes with planning permission and a first-occupancy certificate. Based on current urban regulations in Andalusia, called LISTA, the owner can request this administrative recognition by submitting a small project signed by an architect and paying a fee. Processing times vary for every City Council, as some are faster than others.
How to get an LPO in Andalusia for homes built after 1986
In this case, the process is lengthier and more costly, due to both the type of project to be drawn up by the architect and the fee charged by the City Council. If the home is part of a building and this building has no LPO, it’s very likely for a single home to be unable to obtain an LPO and the Owners’ Association should be the one to request the LPO for the entire building. In the case of semi-detached or fully detached properties, an LPO can be obtained as long as an architect confirms, in a project, that the home complies with urban planning regulations.
As mentioned before, if the home built after 1986 does not comply with urban planning regulations, an LPO can’t be obtained. Only a certificate of equivalent to unregulated can be procured and this is neither worthwhile nor convenient for an urban home.
What changes does the Decree introduce for managers or operators of holiday lets?
One of the most important modifications of the Decree is the new position of responsibility and relevance taken on by professionals and companies that manage, on behalf owners, the operation of properties in the holiday lettings market. Operators of holiday lets, whether they are individuals or companies and even if they only operate a single holiday let, must be registered as holders in the affidavit (DR). To register the manager as holder of the DR for a property, each and every one of the legal owners of the property must provide their authorization, by signing the appropriate assignment or management contract between the operator and the owners.
Management and administration of a property by a third party are assumed to take place when a third party takes care of the delivery and collection of keys, welcoming guests, providing services during their stay, cleaning at check-in and check-out, etc. The holder of the DR will be liable towards the administration and the users of the service, with the requirement to have a contract with the owners to carry out such an activity. They will be required to notify the administration of any changes in the legal title or the conditions of the properties.
What are the obligations for homes already registered in the RTA prior to this Decree?
Homes already registered in the RTA must check whether they meet the new, additional requirements introduced by the Decree and, if not, they’ll have certain deadlines to adapt to these.
What is the deadline provided by the Decree to comply with the regulations for holiday homes in terms of furniture and quality?
The Decree provides a period of up to one year from its entry into force, i.e. until 22 February 2025, for owners already registered in the RTA to recondition the properties. These requirements mainly refer to furniture, air conditioning, minimum room sizes, minimum quality levels, etc. For example, you now need to have 2 bathrooms when having more than 5 guests and 3 bathrooms when more than 8. If you wish to receive our summary PDF with all requirements, please just ask your legal assistant at C&D or read the total decreet in Spanish.
What is the deadline to notify of changes in the number of beds for accommodation?
The new Decree establishes a maximum occupancy per home of 15 persons (max 4 per room), if let as the entire property, and of 6 persons if let by the room (max. 4 per room). (Otherwise you need another kind of RTA license for ´establicimiento hostelero or establicimiento apartamentos´ which also requires a business opening license from the Town Hall). It also introduces minimum and maximum surface areas for the bedrooms and their maximum occupancy, a minimum number of bathrooms, etc.
If a holiday let already registered in the RTA needs to change the number of beds due to the new standards, the decree provides owners or operators six months from its entry into force to do so, i.e. until 22 August 2024.
What is the deadline to notify of the period or periods where the home is used as a holiday home?
If your home is registered in the RTA and you intend to let your home only for a certain period of the year and not for year-round, you have 6 months to do this, i.e. until 22 August 2024.
If you use your property as a holiday let year-round, you don’t need to do anything as, after this 6-month period, the administration will assume it’s used as a holiday let year-round.
How long does a manager or company working on holiday lets have to register as a holder in the affidavit?
The companies or managers who currently manage properties as holiday lets have 6 months to notify the Tourism Register of the change in holder for the RTA registration, for each of the homes they manage.
How does the new Decree affect resolutions banning holiday lets from Owners’ Associations?
The Decree clearly and unequivocally provides that a property cannot operate as a holiday let if the Owners’ Association’s by-laws expressly prohibit tourist accommodation activities. In our opinion, the only way for an Owners’ Association to prohibit holiday lets is for it to amend the by-laws and introduce this express limitation in them.
If there is just a resolution from the Owners’ Association in the minutes of an ordinary or extraordinary meeting, without amending the by-laws to prohibit this activity, even if the resolution is registered with the Property Register, we understand that this prohibition can’t be imposed on the current owners or future buyers of the property.
Can City Councils prohibit or limit holiday lets with the new Decree?
In article 2, the new Decree, allows for “… City Councils, for imperative reasons of general interest, may establish limitations, proportionate to these reasons, in terms of the maximum number of homes used for tourist accommodation per building, area, sector or period…”.
Without a doubt, this is one of the main new features in the regulations of holiday lets in Andalusia. Due to the tourist saturation in some areas or neighborhoods of large cities like Malaga or Seville, as well as other areas in the Costa del Sol, some City Councils have been calling for this measure to enable them to limit tourist activities.
If a City Council wants to limit and prohibit such tourist activities, this must be argued and justified in detail, i.e. it’ll need to show that such a limitation is necessary with clear and objective data. It must also be published prior to its adoption.
Limitations for existing licenses
It is understood that limitations from the Town Hall or the Community of Owners won´t apply to existing licenses. However, once you have a RTA license and you in reality don´t rent out and don´t declare the income tax (IRPF or IRNR), the authority can cancel your RTA license.
C&D Solicitors
At C&D Solicitors, we specialize in providing property advice to foreign clients, whether individuals seeking to buy a second home or an investment property in Spain, as well as investment companies or investment funds seeking to grow their asset portfolio and take advantage of the capital gains they can obtain in the property market and in property operation.
We offer “full service” advice throughout the process in your native language: English, Dutch, Swedish, French and German. You can call us at +0034 952 532 582, send us a WhatsApp message at +34 639 54 16 02 or write to us at info@cdsolicitors.com. We’ll look into your case, we’ll send you information about the process and a cost estimate for this, with no commitment whatsoever.
