• Preliminary concepts

• Temporary residence – Seasonal

• Tourist rent

CHAPTER I.- PRELIMINARY CONCEPTS

Leasing is defined as a bilateral contract by which one of the parties is obliged to give the other the enjoyment or use of a thing for a certain time and a certain price ( CC art.1543 ). These features are those that characterize the legal relationship, in which the lessor is the one who is obliged to give the use of the thing, carry out work or provide a service, and the lessee is the one who acquires the thing or the right to the work or service that he is obliged to pay for ( CC art.1546 ).

It is a contract that is perfected by mere consent and is successive because its execution extends over a period of time.

The object of the lease may be movable property, rights or real estate in general, whether it is an urban property or a rural property, whether built or not.

Although there are various types of leases, in this work we exclusively address the study of those agreed on real estate, leaving aside others whose object is other types of assets or rights, such as financial or operational ones.

Types of leases

In the real estate sector , three types of leases are traditionally distinguished:

– urban;

– rustic; and

– other leases.

Urban Leases

They are governed by the LAU, which is a law of a special nature due to its subject matter. Its content expands the regulations made by the Civil Code regarding leasing.

Within urban leases, the following can be distinguished:

– rental of housing : the purpose of this is a habitable building whose primary purpose is to satisfy the tenant’s permanent housing needs; and

– Lease for use other than housing : is one that, falling on a building, does not have as its primary purpose the satisfaction of the tenant’s permanent housing needs, for example a commercial premises.

Rustic Lease

 Rural leases are regulated by the LAR. They consist of temporarily transferring one or more properties, or part of them, for agricultural, livestock or forestry use in exchange for a price or rent ( LAR art.1 ). Leases of agricultural, livestock or forestry farms are considered to be included in this concept.

The LAR, and not the LAU, also applies to contracts in which, although a rural property with a house is rented , the primary purpose of the lease is the agricultural, livestock or forestry use of the property ( LAU art.5.c ).

Other leases

These leases form a sort of residual category with various types of contracts. Among them are some of those not included, or expressly excluded from the scope of application of the LAU and the LAR ( LAU art.5 ; LAR art.6 s. ).

Housing for porters, guards, employees, employees and civil servants

(CC art.1280 and 1474 to 1563 ; LAU art.5.a)

This type of leasing is expressly excluded from the scope of application of the LAU, so the applicable regime is that established in the Civil Code.

University housing

(LAU art.5.d)

The leasing of university housing is subject to the rules established by the university, and not to the LAU, when the following requirements are met :

– that have been expressly classified as such by the university that owns or is responsible for them;

– that are assigned to enrolled students, teaching staff, administrative staff or service staff, based on the link established between each of them and the respective university;

– that the establishment of its rules of use corresponds to the university itself.

Military housing

(L 26/1999 ; LAU art.5.b ; RD 1080/2017)

The exclusion of the use of military housing, whatever its classification and regime, from the scope of application of the LAU is based, mainly, on the public nature of the housing and the purposes pursued with it, as well as on the great territorial mobility of the military. These leases are governed by their specific regulations, Law 26/1999 and RD 1080/2017 .

Tourist accommodation

(LAU art.5.e)

Despite the urban nature of the properties, rentals of furnished homes for tourist purposes are expressly excluded from the scope of application of the LAU. What characterizes this type of rental is that the property is marketed or promoted in tourist channels or in any other way and carried out for profit .

The powers over the promotion and regulation of tourism are attributed to the autonomous communities within their territorial scope ( Const art.148.1.18 ) without there currently being a basic state regulation that governs this matter. Thus, the different autonomous regulations establish a series of administrative requirements relating to communications, licenses and minimum conditions of the dwelling for the incorporation of the property into this area, as well as the circumstances that characterize a rental as tourist.

Building and improvement

Leases for building ( ad aedificandum ) and for improvement ( ad meliorem ) are atypical and their legal basis is in the recognition of the principle of autonomy of the will ( CC art.1255 ). Thus, they are excluded from the special legislation on urban leases ( TS 13-12-93, EDJ 11317 ).

Ad meliorandum and ad aedificandum leases are characterized by the fact that the lessee assumes at his own expense the obligation to improve the leased property, either by repairing it ( ad meliorandum ), or by constructing buildings ( ad aedificandum ). Upon expiration of the lease, the improvement or building remains the property of the owner of the land (TS 3-4-84; 10-6-86, EDJ 3971 ).

In these leases, the provision of improvement or construction is decisive for the conclusion of the contract and constitutes the tenant’s main obligation . It is usually projected in the lack of cash rent or in the stipulation of a rent in an amount lower than normal since the provision essentially replaces the ordinary price of the rent ( AP Tarragona 14-2-00, EDJ 120059 ).

Undivided share

(TS 4-12-87; 23-12-92, EDJ 11477)

Undivided share leases are governed by the Civil Code, since they do not involve the transfer of use of a real and physically delimited space, which is the basic concept and assumption of the lease, but only of a right represented by the abstract and ideal share.

Parking space

(AP Madrid 2-17-92, EDJ 13178 ; AP Murcia 6-8-10, EDJ 14701)

The leasing of a parking space is of a sui generis if the parking space is not a specific one, but a generic one within a premises. It is governed by the will of the parties and the term is determined by the payment of the rent, annual, monthly, or daily, and is renewed by tacit renewal. However, this is not a peaceful issue.

Solar

The leasing of a plot of land is not governed by the LAU, but by the regulations of the Civil Code. This contract is characterized by the fact that the lessor grants the use of a plot of land and not of a habitable building.

For these purposes, the plot can be defined as the unbuilt surface which, although it may have some construction, is not suitable for housing or for industrial activity (AP Valencia 17-4-02, Rec 654/2001).

habitable buildings or warehouses after the lease was agreed , since in order to qualify the contract it is necessary to go back to the beginning of the same ( TS 11-7-07, EDJ 100744 ; 9-9-09, EDJ 217416 ; 3-5-90, EDJ 4616 ). Constructions carried out after the conclusion of the contract, during its validity, do not modify the regulatory regime applicable to the contract unless the novatory intention of the parties is clearly evident ( TS 26-6-13, EDJ 136053 ).

Likewise, the fact that there were already non-habitable buildings on the plot from the start does not affect its classification as such ( TS 3-5-90, EDJ 4616 ). However, this is not a plot lease, but a lease for use other than housing subject to the LAU, one in which there were originally habitable buildings on the rented land that were also part of the lease ( AP Las Palmas 15-3-12, EDJ 189609 ).

Regulation in the Civil Code

The legislation Applicable to lease contracts is contained both in the Civil Code and in various special laws depending on the type of lease:

 Purpose of the contract

The object of the lease contract may be real estate in general, whether it is an urban property or a rural property, and whether it is built or not.

In the case of urban or rural properties , the regulations of the Civil Code apply only in a supplementary manner or in cases of exclusions from the scope of special legislation.

Contract requirements

In leasing, one of the parties is obliged to give the other the enjoyment or use of the thing for a certain time and a certain price.

True price

(CC art.1543)

Due to the very nature of the lease contract, it is not compatible with the concept of free of charge. Therefore, the price or consideration for use and enjoyment for a certain period of time must also be a certain and determined amount or at least determinable, as it is an essential element of the contract.

The lack of a requirement that the rental price be in money allows us to affirm, as an important sector of the doctrine does, that the consideration for the use of the thing may consist of the delivery of something other than money or in the provision of some service by the lessee to the lessor.

For there to be a certain price, it is sufficient that it can be determined without the need to resort to a new agreement.

It is possible that the rent consists of the provision of certain services by the tenant, because the provision of these services, which are in themselves exigible and have a certain economic value, is equivalent to the payment of a price.

The rental price may consist of a specific and aliquot part of the profits from the leased property.

Fixed time

(CC art.1543 and 1581)

The requirement of temporality is given by the very nature of the lease , since by its essence, its legal effects and the legal relationships it creates between the contracting parties, it is opposite to the concept of perpetuity.

The owner or proprietor of the property, through the lease, cedes possession or direct use of the property for a certain period of time, regardless of whether this period of time is more or less long; but always assuming that the owner of the property will, at a future time, recover or regain possession.

This is clearly deduced, since the lack of temporality would distort the essence and nature of the legal link, which would clearly lead to the ineffectiveness of those contractual clauses that refer to the duration of the lease, recording an uncertain duration , inoperative in the lease.

Therefore, a term for an indefinite period is totally incompatible with the very nature of the contract. And therefore, an indefinite term would represent the permanent transfer of the use that is transferred, dismembering it from the domain. This timelessness entails the radical nullity of the clause, which must be understood as not included in the contract.

As for the duration of the lease, if no term has been set for the lease, it is understood to be made by years when an annual rent has been set, by months when it is monthly, and by days when it is daily.

In any case, the lease ceases , without the need for a special request, once the term has expired.

When the landlord of a house, or part thereof, intended for the habitation of a family, for example.

The shop, warehouse or industrial establishment also rents furniture , the lease of these is understood to be for the duration of the leased property. This is, therefore, the way to calculate the lease period of the attached movable property, based on the principle of temporality of the lease contract, the only and exclusively applicable rule, in the absence of a specific agreement between the contracting parties ( CC art.1582 ).

Parts

The contracting parties to the lease are:

– the lessor, who grants the use of the property ; and

– the lessee, who acquires the use of the same .

Landlord

A lessor may be anyone who can lease something to another person, with the security for the lessee that his legal position cannot be attacked by a third party. In short, anyone who has a title that grants him the use and enjoyment of the thing, provided that this use is not personal or non-transferable.

The following subjects are generally considered to be holders :

• Owner ( CC art.1559 ). The most common case is that the lessor is the owner of the property offered for lease, which has led to the identification of the owner with the lessor in certain legal regulations. This is the person fully authorized to enter into a lease agreement for the property that belongs to him.

• Usufructuary ( CC art.480 ). The holder of a right of usufruct, and not the bare owner, is the one who is authorized to lease the usufructed property, insofar as the powers of use and enjoyment are similar to the powers of the usufructuary. These are cases in which the ownership of the property is divided between the bare owner and the usufructuary, and it is the latter who is authorized to lease the property. In such cases, the lease contract subject to the Civil Code expires when the right of the usufructuary lessor ends.

• Holder of the right of surface . The owner of the construction on another’s land, as owner of the construction, can lease it, although the temporality of this right must be taken into account, insofar as these constructions finally revert to the owner of the land. Here we find the same solution given by the Civil Code as with the right of usufruct. When the right of surface ends or expires, the lease contract entered into by the holder of the right of surface expires.

Capacity

(CC art.1548)

In order to lease, one must have the general capacity to contract. The lease contract is an act of administration , and not an act of disposal. And this, as long as the ownership of the asset is maintained, has the purpose of obtaining an economic return from it by transferring the use and enjoyment of the asset transferred.

Consequently, they cannot lease :

– the person in absolute need of support measures;

– unemancipated minors;

– those who, not needing support measures in an absolute manner, are deprived of such administrative powers;

– parents or guardians, with respect to the assets of minors;

– property administrators who do not have special power, for a period exceeding 6 years;

– those involved in bankruptcy proceedings, lacking the power to administer from the date of the bankruptcy.

Law 8/2021 , which came into force on 3-9-2021, was approved , reforming civil and procedural legislation with the aim of ensuring that people with disabilities can exercise their legal capacity under equal conditions in all aspects of life, providing them with the necessary support.

This allows people with disabilities to participate directly in decision-making that affects them, with the necessary support proportional to their specific circumstances, instead of being replaced in the exercise of their legal capacity.

Title XI of Book One is rewritten and now entitled “On support measures for people with disabilities in exercising their legal capacity” ( CC art. 249 to 299 ), so that the idea behind the new regulation is not incapacitation or modification of capacity, but that capacity is inherent to the person and cannot be modified, but appropriate and proportional support must be given to those who need it.

Anyone can benefit from support measures, regardless of whether their disability situation is administratively recognized or not.

However, they can lease :

– emancipated minors, by themselves or with the assistance of their representatives;

– the usufructuaries;

– those who have the judicial, legal or voluntary administration of the assets of another, whether by parental authority, guardianship, curatorship, administration or mandate; and

– those persons judicially declared as needing partial support, but authorized to do so (No. 193 ).

Term

(CC art.1548)

The Civil Code makes a clear distinction in terms of capacity to lease between leases for a period or term exceeding 6 years, or less than that.

In order to lease a good for a term of more than 6 years , the act is considered to exceed a mere act of administration. Once this limit is exceeded, the contracts are classified as an act of disposal or extraordinary administration and, therefore, the consent of the holder of the right over the thing that serves as support for the lease, or judicial authorization, is required.

Parents, guardians or curators

(CC art.287.2)

Parents or guardians, in the case of minors, and curators who exercise representation functions for the person who requires support measures regarding his or her assets, as well as administrators of assets who do not have special power, cannot lease things for a period exceeding 6 years. If this period is exceeded, the act becomes an act of extraordinary administration, and judicial authorization is required.

In addition, the following assets are outside the power of administration of the parents, as holders of parental authority over their children ( CC art.164 ):

• Assets acquired free of charge when the disposer has expressly ordered it. The disposer’s wishes regarding the administration of the assets and the destination of the proceeds are strictly complied with.

• Those acquired by succession in which the father, the mother or both have been justly disinherited or have not been able to inherit due to unworthiness, which will be administered by the person designated by the deceased and, failing that and successively, by the other parent or by a specifically appointed judicial administrator.

• Those that the child over 16 years of age has acquired through his work or industry . The acts of ordinary administration are carried out by the child, who needs the consent of the parents for those that exceed it.

Leases entered into by parents or guardians for the property of their children or wards for a term exceeding 6 years are void for the term for which they were not authorised. Part of the doctrine therefore maintains an ineffectiveness of the contract, but only in the event of an excess of term or in the period for which they were not authorised to act, so that the contract is valid for the period not exceeding 6 years (Fuentes Lojo). Other authors point to a mere voidability, with the contract being able to be validated a posteriori.

However, case law leans towards absolute nullity, meaning that the contract is only effective and valid for a term not exceeding 6 years, and non-existent or null as to the rest.

Estate Administrators

(CC art.1548)

Property administrators who do not have special power over the property of minors cannot lease things for a period exceeding 6 years.

The administrator who exercises representation functions to lease properties for an initial term exceeding 6 years, requires judicial authorization for the acts determined by the resolution.

We are inclined to maintain that the violation of the mandatory rule that property administrators who do not have special power over the property of minors or persons who require support measures cannot lease things for a term exceeding 6 years, must entail the radical or full nullity of the contract and not its mere voidability.

Over 16 years old – Emancipated

Emancipated persons over 16 years of age also need the consent of their parents to supplement their capacity to enter into a lease contract for a period of more than 6 years. They do not need the consent of their parents, as long as they grant a lease contract for a shorter period or what we understand as a mere act of administration.

who are not emancipated may also lease, understanding the act of leasing as the act of disposal for the maximum period indicated, when the goods to be leased have been acquired by themselves, with their work or industry.

Along the same lines, a statement must be made regarding the lease contracts that have been signed by the agents , in the sense that they can lease for a period equal to or less than 6 years and, on the other hand, they require a special power, which authorizes them to carry out a special administration act, or a lease for more than 6 years, as it is equivalent to a dispositive act.

Please note that, as of 3-9-2021, Law 8/2021 allows people with disabilities to exercise their legal capacity under equal conditions in all aspects of life, providing them with the necessary support.

Anyone can benefit from support measures, regardless of whether their disability situation is administratively recognized or not.

Spouses

Spouses, if they are under the matrimonial economic regime of joint property and, along the same lines, the act does not exceed a mere ordinary administration, the contract granted by either spouse is valid – lease for a period not exceeding 6 years.

If the lease term is longer than 6 years (extraordinary administration), the consent of both spouses is required. If one of them does not give consent, the person wishing to lease requires judicial authorization. As a special feature, the extraordinary administration act can be carried out by one of the spouses, with the other being able to give consent a posteriori.

None of the above is applicable in the event that the property to be leased is the private property of one of the spouses, subject to the community property regime, since as a private property, its owner has all the powers of disposal over it and, therefore, may freely lease it.

In this case, or when the spouses are subject to the regime of separation of property , each spouse has all the powers of disposal over the assets of his or her exclusive property, since under this matrimonial economic regime, each spouse has all the powers of administration and disposal over the assets of his or her exclusive property.

Only in the matrimonial economic regimes of separation of property and in the community property regimes, the exception of the disposition of the habitual residence must be respected . In this sense, it cannot be disposed of without the consent of the other spouse or, failing that, without judicial authorization. The erroneous or false statement of the disposer regarding the nature of the residence will not harm the purchaser in good faith ( CC art.1320 ).

Communities of property

In communities of property, for those acts that exceed the period of mere administration, that is, lease contracts for a period of more than 6 years , the consent of all the commoners is required or, failing that, the commoner who wants to carry out such an act of special administration must obtain judicial authorization ( CC art.398 ).

In acts of mere administration, or when a lease agreement is entered into on the common property for a period of less than 6 years , the consent given by the majority of the co-owners is sufficient. In this sense, for the administration and better enjoyment of the common property, the agreements of the majority of the participants are obligatory.

In Catalonia, extraordinary administration acts require the favourable agreement of the owners representing at least 3/4 of the shares, and for acts of disposal the consent of all. The question arises, therefore, whether the agreement of the owners representing 3/4 of the shares would be sufficient to enter into a lease for a period of more than 6 years ( CCC art.552 ).

Tenant

The tenant acquires the use of the thing for a certain price.

The legal capacity required of the tenant to enter into a lease agreement is the general capacity to enter into contracts and to enter into obligations.

prohibitions on contracting provided for in sales contracts ( CC art. 1459 ) are not applicable to tenants , insofar as the analogous extension of a rule provided for an act of disposition is not possible.

Tenants may be either a natural person or a legal person. If they are natural persons, tenants may be one or more persons. If there are several tenants , they may be joint or several tenants. Unless otherwise indicated, tenants will always be joint tenants, as long as joint tenants are the general rule and joint tenants are the exception, operating only when such joint tenants have been expressly stipulated.

Effects on third parties

(CC art.1549 and 1571)

Leases of real estate that are not duly registered in the Property Registry have no effect on third parties.

In particular, the buyer of a leased property has the right to terminate the current lease upon completion of the sale , unless otherwise agreed and as provided for in mortgage legislation. The buyer is granted the right to terminate the lease contract on the acquired property, leaving the exercise of the right to terminate the contract at the buyer’s discretion.

By agreement to the contrary , we mean the buyer’s waiver of exercising his right to terminate the lease on the property he is acquiring, a waiver that is contemplated among the agreements of the sales contract ( CC art.1255 ). In this case, the buyer assumes the continuation of the lease and acquires the rights and obligations that the seller had due to his status as lessor.

By registering the lease in the Property Registry, the buyer cannot ignore the existence of the contract, and must respect it until its expiration, with the buyer being subrogated to the rights and obligations of the seller, the previous lessor.

If the buyer exercises his right , the tenant may demand that he be allowed to collect the fruits and that the seller compensate him for any damages caused. It is therefore clear that in the leases of real estate governed by the Civil Code, the lease only takes effect against the new owner of the property, when it is registered in the Property Registry, or when there is an express agreement.

4. Rights and obligations
5. Obligations of the landlord

(CC art.1554 s. )

The landlord’s obligations are:

– deliver the thing that is the object of the contract (no. 220 );

– to remedy eviction and hidden defects (No. 223 );

– carry out the necessary repairs to the leased property (No. 235 );

– maintain the tenant in peaceful enjoyment of the lease (No. 238 );

– not to change the form of the leased item (nº 240 ).

Delivery of the object of the contract

(CC art.1554.1)

The delivery of the property is the basic obligation of the lessor.

Delivery must take place at the time of signing the contract, unless otherwise expressly provided for in the contract. The lessee must be put in possession of the leased item, and the costs of delivery of the item shall be borne by the lessor.

The leased item must be delivered, with all its accessories , and in a condition to serve the use that has been agreed upon.

In the event that delivery of the item does not take place, the lessee may request termination of the contract with compensation for damages or demand compliance with the obligation, in addition to the damages caused by the delay.

It is different when the non-compliance or lack of delivery is due to the impediment of a third party , in which case the lessor is not liable for that which could not have been foreseen, or which, if foreseen, was inevitable ( CC art.1105 ).

Sanitation

(CC art.1553)

The general provisions on lease contracts make a specific reference to the application of the provisions on compensation included in the regulation of the contract of sale. This must always be interpreted, saving the clear differences existing between the contract of sale and the contract of lease, by their very nature.

Consequently, in cases where the price must be returned , the reduction must be proportional to the time that the lessee has enjoyed the item.

There are two types of sanitation:

– by eviction ( and

– for hidden defects .

Sanitation by eviction

(CC art.1475, 1478, 1479 and 1483)

Eviction occurs when the tenant is deprived by a final judgment and by virtue of a right prior to the lease of all or part of the leased property.

As a result, the tenant has the following rights :

– restitution of the rent paid, with a reduction proportional to the time that the property has been enjoyed;

– fruits or yields of the thing;

– contract expenses paid by the lessee;

– damages and interests and voluntary expenses or those for pure entertainment or ornamentation;

– costs of the litigation that led to the eviction and, where applicable, those of the litigation with the landlord for rectification.

In these terms, when the tenant waives the right to eviction by contract, if this occurs, the landlord must only reimburse the rental price that could have been paid for the time not enjoyed. This is provided that the waiver has not also been specifically made with knowledge of the risks of such eviction occurring and assuming its consequences.

In the case of partial eviction , if the part of the leased property that is lost due to the eviction is of such importance that without it the lessee would not have leased, he may demand the termination of the contract with analogous application of the provisions for the sale, that is, with the obligation to return the property without any encumbrances other than those it had when he received it from the lessor.

The same applies if two or more things were leased together , provided that it is clear that the tenant would not have leased one without the other.

If the leased property is encumbered , without mentioning it in the contract, with some non-apparent burden or easement of such a nature that, had the tenant known, he would not have taken the property on lease, he may request the termination of the contract or request compensation, analogously applying the provisions for the sale.

We understand that there is no eviction, in the event that the landlord sells the property to a third party , even though the sale entails the termination of the contract in accordance with CC art.1571 .

Sanitation for hidden defects

(CC art.1484, 1485, 1486, 1488, 1490 and 1553)

The lessor is obliged to provide compensation for hidden defects in the leased property if these defects make it unfit for the use for which it is intended, or if they so diminish this use that, had the lessee known of them, he would not have rented it or would have agreed to a lower price for it. However, he shall not be liable for defects that are manifest or visible, nor for those that are not visible if the lessee is an expert who, by reason of his trade or profession, should easily have known them.

The lessor is responsible for these defects, even if he is unaware of their existence , unless otherwise stipulated and the lessor is unaware of the hidden defects or flaws in the property sold.

It should be understood that the remedy for hidden defects applies only to those defects or flaws existing at the time of granting the contract .

It is necessary to start from the obligation of the lessor to carry out all the necessary repairs to the leased property during the lease in order to keep it in a condition suitable for the use for which it was intended (nº 303 ). Leases subject to the LAU also have their own regulations in this regard, which specify the content of this obligation.

Therefore, hidden defect is defined as:

– a major defect, which does not give rise to a right to demand repair;

– that is hidden; and

– that makes the thing unfit for the use for which it is intended.

The defect must manifest itself within a period of 6 months from the delivery of the leased item.

The tenant has the following options :

– withdraw from the contract, and the amount paid will be paid back with a reduction proportional to the time that the item has been enjoyed; or

– reduce the price or rent proportionally to the loss that may be caused by supporting this vice.

If the landlord knew about the hidden defects or flaws in the leased item and did not disclose them to the tenant, the tenant will have the same option and will also be compensated for damages if he chooses to terminate the lease.

If the leased item had a hidden defect at the time of the lease and is subsequently lost due to chance or the fault of the lessee , the latter may claim from the lessor the price paid with a reduction proportional to the time of use.

In practice, it is very difficult to determine whether we are dealing with a case of obligation to repair hidden defects or, on the contrary, with obligations required of the lessor to repair and maintain the tenant in peaceful enjoyment of the property.

Necessary repairs

(CC art.1554, 1558, 1559, 1561 to 1564, 1568 and 1580)

Among the obligations of the lessor is to make all necessary repairs to the leased property during the lease period in order to keep it in a condition suitable for the use for which it was intended.

The concept of repair must be distinguished from the concept of reconstruction , reaching the obligation of the lessor to repair, but not to rebuild, and marking the difference between both the true nature of the works as well as the economic amount of the same, in relation to the value of the leased.

The repair must be a necessary or indispensable work to keep the thing in a serviceable condition; works that may be considered improvements are excluded.

If during the lease it is necessary to make urgent repairs to the leased property which cannot be deferred until the end of the lease, the tenant is obliged to tolerate the work, even if it is very bothersome, and even if during the work he is deprived of part of the property.

In the event of the landlord’s failure to make repairs, the tenant cannot, in principle, repair the property at his own expense, but must be required to carry out the work and, if he fails to do so, the court must decide.

However, the tenant may carry out urgent repairs to prevent imminent damage, but the urgency or pressing need must be proven.

Peaceful enjoyment of the lease

(CC art.1554.3 and 1556)

The delivery of the leased object for a certain time and a certain price entails the obligation of the lessor to maintain the lessee in peaceful enjoyment of the object, imposing on him the obligation that the lessee may enjoy the object in accordance with the agreed purpose.

The lessor must refrain from carrying out any acts that may prevent or disturb the use of the leased object by the lessee, and shall be liable, where applicable, for any disturbances suffered by the lessee. The peaceful enjoyment of the leased object is considered to be prevented or disturbed by any acts that constitute a limitation or obstruction to such enjoyment. For example, the creation of an easement that did not exist when the lease contract was signed.

In the event of non-compliance with this obligation, the tenant may request the termination of the lease and compensation for damages.

Variation in the form of the leased item

(CC art.1557 and 1554.3)

The impossibility of changing the form of the leased item is an obligation that derives from the very nature of the lease contracts, but it cannot be interpreted in absolute terms. In each particular case, it is necessary to assess whether the change made alters or harms the use of the leased item for the purpose that was agreed upon or, on the contrary, simply represents a circumstantial change (e.g. improvement works).

• Obligations of the tenant

(CC art.1555 s. )

The tenant is obliged to:

– pay the lease price on the agreed terms ;

– make use of the leased property as a diligent father of a family ;

– pay the expenses incurred in writing the contract ;

– to inform the owner, as soon as possible, of any usurpation or damaging novelty (No. 255 );

– tolerate the works to be carried out by the landlord ;

– return the property at the end of the lease ;

– be liable for any deterioration or loss of the leased property ;

– consent to the landlord’s entry

Furthermore, all obligations established in the contract as a result of the freedom of agreement between the contracting parties are payable to the tenant, for example, the agreement by which the tenant assumes the cleaning of the entrance or certain elements of the staircase; as well as any other obligations that may arise based on a criterion of proportionality and the least possible restriction of the freedom and interests of the rest of the neighbors and the general interest.

Payment of the price

(CC art.1171 and 1574)

The lessee is obliged to pay the lease price under the agreed terms.

The provision or payment of the price is the essential obligation of the lessee, in correspondence and reciprocity to the obligation of the lessor to deliver the use of the leased item.

The terms of the contract must be followed regarding the determination of the rent or price, method of payment, time and place.

The price must be determined or determinable , and although it is most common for it to be in money, this is not essential, and it may be in fruits or products.

It is common to establish a stabilization clause in leases subject to the Civil Code, depending on the term for which the contract has been established.

The obligation to pay the price is suspended for the lessee in the event that the lessor does not comply with the essential obligation of delivering the item.

If nothing is stated in the contract regarding the place of collection of the price, it must be understood that this is the tenant’s domicile.

And as regards time, the provisions of the contract will apply and, failing that, the custom of the land.

Proper use of the leased property

(CC art.1555.2)

The lessee is obliged to use the leased property like a diligent father of a family, using it for the agreed purpose and, in the absence of an agreement, for the purpose inferred from the nature of the leased property according to the custom of the land. The legislator has followed the general rule here regarding the diligence required in the care of the leased property ( CC art.1104 ).

The use of the thing is a right and also an obligation, insofar as non-use or sporadic and anomalous use may cause damage to the leased thing and, therefore, a breach of the lessee’s obligation to maintain it.

The doctrine understands that behavior as a diligent father of a family implies (Puig Peña):

• Safeguard the thing by carrying out the activity required of anyone who has possession of another’s thing, taking the appropriate measures to ensure that it does not perish or seriously deteriorate.

• Do not make abusive use, whether of the same thing or of the existing legal relationship.

As for the destination , one must adhere to what is specifically agreed in the contract, and in the absence of an agreement, one must adhere to the nature of the thing, according to custom in analogous cases.

Failure by the tenant to comply with this obligation means that the landlord may demand compliance with the agreement, claiming compensation for damages from the tenant or termination of the lease through legal action.

It is jurisprudential doctrine that the lack of use of the leased property by the tenant without justification and for a prolonged period of time constitutes the cause for eviction included in the CC art.1569.4º ( TS 16-7-09, EDJ 165894 ).

Contract writing fees

(CC art.1555.3)

The obligation to pay the expenses derived from the writing of the contract is of a dispositive nature , and therefore allows for an agreement to the contrary.

Failure to comply with this agreement, in principle, cannot lead to the termination of the lease agreement as a penalty.

Usurpation or harmful novelty

(CC art.1559)

The tenant is obliged to inform the owner, as soon as possible, of any usurpation or damaging innovation that another person has made or openly prepares in the leased property. No specific deadline is required, but it must be understood that this must be done without delay in order to prevent the damages produced and the causes generating them from increasing the harmful result.

This obligation is closely related to the landlord’s obligation to maintain the tenant in peaceful enjoyment of the property , as well as to the obligation of sanitation and the landlord’s obligation to repair .

notification to the landlord is not required ; it may be in any form, as long as it is effective, verbal or written.

Works or repairs

(CC art.1558)

If during the lease it is necessary to carry out any repairs on the leased property that cannot wait until the conclusion of the contract, the tenant is obliged to bear the work, even if it is very inconvenient, and even if during the execution of the work he is forced to be deprived of all or part of the property .

It is necessary that the repair is not only necessary but also urgent, meaning that it cannot be postponed until the end of the lease.

This obligation is correlative to the lessor’s obligation to repair , which is inherent to the concept of the lease contract. To this end, it should be noted here that the lessor has the obligation to carry out the necessary maintenance and repairs in order to keep the property in a condition suitable for the use for which it has been intended ( CC art.1554.2 ).

The basic performance of the lessor includes an obligation to do , of the so-called lasting, successive, continued or successive performance, which consists of providing the lessee with the agreed use or enjoyment of the leased item during the entire term of the contract.

If the repair takes more than 40 days , the rental price must be reduced in proportion to the time and the part of the property that the tenant is deprived of.

On the other hand, if the work is of such a nature that it makes the part of the property that the tenant and his family need for their accommodation uninhabitable , the tenant may terminate the contract.

The landlord has not only the obligation, but also the right to carry out the works. If the tenant does not agree to this request, the landlord can go to court to have the tenant allowed to access the building and, where appropriate, to be held liable for any damages that may be caused by the tenant’s obstructive behaviour.

Return of the leased property

(CC art.1561)

The tenant must return the property at the end of the lease in the same condition in which he received it, except for anything that has perished or been damaged by time or by unavoidable causes.

Although the rule only refers to the tenant’s obligation to return the property upon termination of the lease agreement, it must be understood that it applies regardless of the property leased.

In the absence of an expression in the contract of the condition of the property at the time of the contract, it is presumed that the tenant received it in good condition, unless proven otherwise.

Consequently, this obligation of the tenant to restore things to their previous state must be put in relation to:

– the actual condition of the property at the time of leasing;

– deterioration due to normal, non-negligent use of the leased item; and

– the landlord’s compliance with the duty of maintenance and conservation of the leased property.

Loss or deterioration of the thing

(CC art.1563)

The obligation to deliver a specific thing is extinguished when it is lost or destroyed without the fault of the tenant , thus extinguishing the contract . A presumption of liability is established on the part of the tenant for the deterioration suffered by the property, which yields when it is proven that the deterioration was due to a fortuitous event, without any fault or negligence on his part. This forces him to prove that he used all due or required diligence to avoid the damaging event.

We understand that the tenant’s liability in this case extends to cases of damage caused without his/her intervention , but generated by a lack of diligence.

It is understood that there is a loss if the works to be carried out involve a true reconstruction , since the landlord is only obliged to carry out the repairs necessary to keep the thing in a condition suitable for the use for which it was intended.

People dependent on the lease

(CC art.1564)

The tenant is responsible for damage caused by the people in his house. This is nothing more than a specification of the general rule of liability insofar as the tenant is responsible for the care and preservation of the leased property, answering for damages caused by an omission of his duty in vigilando of the people who, for whatever reason, occupy, even accidentally, the leased property.

Precisely for this reason, the tenant is liable to the landlord for damages caused by the sub-tenant , understanding that he has not had the necessary diligence in supervising the sub-tenant or that there is liability due to omission.

Improvements

(CC art.487, 488 and 1573)

The tenant has the same rights as usufructuaries with respect to improvements. Consequently:

useful or recreational improvements to the property that he deems appropriate, provided that the form or substance is not altered, although he is not entitled to compensation for this. He may, however, remove such improvements, if it is possible to do so without detriment to the property.

• You can compensate for damage to the goods with the improvements you have made to them. Obviously, if the contracting parties do not agree on such compensation, it will be the courts who will decide whether it is appropriate to recognise its application in each specific case.

Landlord’s entrance

(CC art.1554.2)

As long as the landlord has a legitimate interest in monitoring or exercising his rights as owner and it is not a mere whim, he may enter the rented property. For example, to fulfill his obligation to carry out necessary repairs (No. 235 ).

Extinction

As regards the termination of the lease, it is necessary to refer to different situations :

• Expiration of the term, whether or not there is an agreement in this regard
• Cases in which tacit renewal takes place
• Loss of the thing.
• Non-compliance with the agreed conditions
• Alienation of the leased property

Course of the term

(CC art.1543 and 1565)

The lease contract, as enjoyment or use of a thing for a determined period of time, must be estimated by its own nature and essence as a temporary or limited-time contract , since transmitting it in an unlimited or indefinite manner would constitute an indefinite transmission of use, dismembering it from the domain, for which reason, the delimitation of the term in the contract is essential .

The term of the contract must be set , indicating a certain and determined period, or referring it to a future event, but one that must inevitably occur.

The duration of lease contracts subject to the Civil Code is governed by the will of the parties agreed upon in the contract. In this sense, if the lease has been made for a fixed period, it ends on the predetermined day without the need for a notice.

Upon expiration of the agreed term, the contract expires, but may be renewed by tacit renewal .

If the tacit renewal does not operate, and if the tenant remains in possession after the contract has been terminated, he is considered a squatter , or occupant without title. An eviction action may be brought against him, in order to compel him to vacate if he does not comply voluntarily, due to expiration of the term.

death of the tenant occurs while the contract is in force and the freely agreed term has not elapsed, the heirs may continue to hold the right, unless otherwise agreed, until the agreed term is fulfilled.

After the period specified in the contract has elapsed, the lease ends without the need for any type of request ( CC art.1565 ).

Absence of pact

(CC art.1581)

In the event that the contracting parties have not established a term or period, the Civil Code makes up for this lack in order to leave the contract subsistent and valid. Thus, if no express agreement was established on the duration of the contract, it is understood to be made for years when an annual rent has been set, for months when it is monthly, and for days when it is daily. In any case, the lease ceases , without the need for a special request, once the term has been fulfilled. The interpretation of this article regarding the duration of contracts in which no term has been set is so clear that it does not require any reasoning. Having the parties set a monthly rent, the term is monthly, having agreed on an annual rent, it will be the annual term. It is not relevant whether the custom in the area is this or another.

indefinite period or any other term has been established that prevents the temporary term of the contract from being determined, this clause is radically null and void and the previous rule applies imperatively.

However, when it has been agreed in a lease that the extensions of the contract are at the exclusive will of the tenant, if this is a legal person, it is case law that said lease must have by analogy the same maximum duration as the legal duration of a usufruct under these conditions, that is, 30 years ( TS 9-9-09, EDJ 217416 ).

Tacit renewal

(CC art.1566 and 1567)

The Civil Code specifically provides the requirements that must be met for tacit renewal to operate. They are the following:

• The tenant’s permanence in the enjoyment of the thing for 15 days, once the term has ended.
• The acquiescence of the landlord.
• That there has not been a prior eviction request.

Tacit renewal constitutes a new contract perfected by the tacit consent of the contracting parties, expressed as to the lessee by the continued use and enjoyment of the leased property once the term has expired, and as to the lessor by his acquiescence to such continued use.

In this case, the obligations granted by a third party for the security of the main contract cease with respect to it.

 Regarding acquiescence, it should be noted that:

– the mere tolerance of the landlord is not acquiescence, a term that expresses conformity or consent;

– the term of acquiescence does not apply when the landlord files the corresponding eviction claim before 15 days have elapsed;

– there is also no acquiescence when there has been a prior request from one of the two contracting parties;

– there can also be no acquiescence when the non-tacit renewal has been expressly agreed upon ;

– tacit renewal cannot operate if the actor has communicated to the tenant in a proven manner his will not to extend the lease;

– acquiescence is also not present when there is a proven situation of disputes, disagreement and non-payment of the agreed rent;

– it is not enough for the tacit renewal to operate that the tenant continues to pay the rents ;

– the collection of rents means nothing more than the effective consideration due for continuing to be in possession of the property, without relevance as payment if the will to terminate the contract has already been expressed; and

– tacit renewal cannot operate if a representative of the landlord has denied the extension , provided that such act is ratified by the principal.

Duration of the extended contract

When the original contract expressly stipulated the possibility of extending it for a certain period of time, equal to or different from the initial one, one must adhere to what was expressly agreed.

When the extension of the original contract operates by tacit renewal and, therefore, no period of time was agreed for which the renewal operates, it is necessary to resort to the established parameters and extend the contract for years when an annual rent has been set, for months when it is monthly, or for days when it is daily ( TS 26-9-18, EDJ 588456 ).

Breach of the contract

(CC art.1101, 1124 and 1556)

Failure to comply with the conditions stipulated or agreed in the contract may lead to the termination of the contract. To determine whether failure to comply with the condition produces a termination effect, the following must be taken into account:

• The intention of the parties . When examining the conditions agreed in the contract, it will be determined whether it is a principal or accessory condition, in order to know if the parties have intended to give the breach of that clause resolutory effects. Although, ultimately, the courts will have the final say, which may give rise to the contractual termination based on any condition, if they appreciate the application of CC art.1556 to the case . Thus, for example, the termination of the contract is not possible due to the tenant’s breach of the agreed obligation, when it is a breach of an accessory or complementary condition (TS 26-7-99).

• Good or bad faith in compliance.
• Force majeure that prevents compliance.
• The existence of default on the part of the landlord.
• In the case of reciprocal obligations , whether or not the requirements necessary for the applicability of CC art.1124 have been met .

In the event of non-compliance, compensation for damages may also be requested , or only the latter, leaving the contract in force.

eviction trial (No. 10345 s. ), or opt for other judicial means.

Sale of the leased property

(CC art.1571)

As a general rule , the buyer of the leased property has the right to terminate the lease. Exceptionally , the buyer does not have this right when:

– the lease is registered in accordance with the provisions of mortgage legislation; or

– there is an agreement to the contrary between the selling lessor and the purchaser.

In any case, the tenant may demand that he be allowed to collect the fruits and that the seller compensate him for any damages caused. In order to obtain compensation for damages, if the seller and the tenant cannot agree, the latter must file a legal claim. In order for the action to be viable, it will be necessary, in addition to the termination of the contract, that the damages have actually occurred, which must be certain and proven.

This precept has been harshly criticized by the doctrine , since it is equivalent to a privilege granted to the owner, who, if he wants to avoid compliance with the lease contract, only has to sell the property that he had previously leased to a third party, and furthermore, the existence of said lease contract does not diminish his economic expectations, since they do not constitute a burden for the new owner, who can be released from the tenant by the mere fact of the acquisition.

Furthermore, it is totally antagonistic to the regulation of the LAU and the leases of properties subject to it, since the right that the buyer of the leased property traditionally has, according to the Civil Code, to terminate the current lease, was substantially modified in LAU/64, by determining that even if the property changes owner or lessor, when the due date agreed in the contract arrives, the lease is obligatorily extended for the lessor and optionally for the lessee, without alteration of any of its clauses that remain in force until its termination, independently of the sale of the property, the new owner being subrogated in the position of the previous lessor.

1) Although the general rule is that the lease contract expires when the sale is made, the current lease does not end immediately, but it is necessary for the buyer to express his desire to terminate the contract .

2) No advance notice is necessary , since the Law leaves the exercise of the right to the buyer’s will, but does not condition it to any term, and the buyer may express his will contrary to the continuation of the lease judicially or extrajudicially (for example, through a request).

3) The new owner may exercise his right from the moment of acquisition, without the need for prior registration of the title in the Property Registry for his legitimacy, since the title is the deed itself.

4) The transfer in lieu of payment of a property to a creditor in payment of his credit has been assimilated by jurisprudence to a sale, therefore, the purchaser will have the same powers to consider the lease contract terminated.

5) The current regulation of the LAU differs substantially in this point from that of the Civil Code (no. 665 s. ).

Destination of the leased property

(CC art.1555.2 )

The leased item must be used by its lessee in accordance with the purpose or use agreed upon in the lease contract or, if none has been agreed upon, in accordance with what can be inferred from the nature of the leased item.

There are three modalities that, by violating the purpose of the leased property, authorize the landlord to terminate the lease agreement :

• To use it for a purpose other than that agreed upon, or in the absence of an agreement, for a purpose other than that resulting from the very nature of the thing.
• Using it without the diligence of a good father, causing deterioration, discredit or harm.
• Not using it and, therefore, not using it for the agreed purpose.

Instructions for use

 The Civil Code requires, with regard to the manner of use of the leased property, that it be used for the agreed purpose and, if there is no agreement , according to what results from the nature of the leased property, according to the custom of the land. To do so, its peculiar characteristics, the purpose that is usually given to similar things, etc. (purpose) must be taken into account .

On the other hand, as regards the intensity of use , it is required that it be carried out as a diligent father of a family.

The diligent use of the leased property includes two aspects :

• Guard the thing, carrying out the activity required of anyone who has possession of the thing.
• Not to exercise or refrain from exercising abusive use of the same. Abusive use is when the conditions of the contract are violated and the leased property is used for purposes other than those stipulated.

The tenant is responsible for any damage or deterioration caused to the property by misuse, either by not taking due care of the leased item or by using it for purposes not agreed upon. Unquestionably, any use of the leased item, even for the agreed purpose or its proper purpose due to its very nature, which causes damage, imperfection or any other loss of value to it, constitutes grounds for termination of the contract.

It is also understood that the lessee infringes the agreed purpose or use, in cases where there is a lack of use , and this non-use may be a cause for contractual termination. And this is because, since the leased item has not been used for the agreed purposes, the obligation prescribed in CC art. 1555.2 has been contravened , as regards using the leased item for the agreed use, which is not a right of the lessee, but an obligation.

If the leased item is used for a purpose other than that agreed upon , there is no need for a real loss in the form of damages for the termination of the contract, because the mere change of purpose, in itself, is already a cause for termination of the contract. This is due to the general doctrine of termination of the lease due to non-compliance with the agreed conditions.

Doctrine and jurisprudence are not unanimous on this point, giving rise to the thesis that allocating the leased item to a different use by itself, without that different use causing a loss of value in the leased item or a loss in the owner of the leased item – understanding loss as either material or other damage attributable to the lessee – is not sufficient to terminate the contract; insofar as the first part of the fourth cause of CC art.1569 requires that it causes a loss of value in the leased item. Thus:

1) The use of the property without due diligence only leads to the termination of the contract if damages are caused as a result which diminish the value of the property. Otherwise, the landlord may demand compliance with the agreement or the agreed use.

2) There is no need for actual loss in the form of damages when there has been a change of destination, since the change of destination is prohibited in the contract.

3) New installations in an industry cannot be considered a change of purpose , since the expansion of the industry for which the lease contract was signed does not, in itself, constitute a change of purpose or a harmful use.

Enforceability of use

(CC art.1556)

The landlord may require the tenant to comply with the agreement or the use that corresponds to the nature of the property, by exercising the corresponding legal action . That is, by judicially exercising his power to make the tenant comply with the obligation to continue using the leased property for the agreed use and requesting the corresponding compensation for damages, if applicable.

The landlord may also choose, instead of the above, to terminate the lease agreement

Sublease

(CC art.1550 to 1552 )

A sublease contract can be defined as a lease contract that the lessee, now called the sublessor, enters into with a third party , called the subtenant, for a certain price and a certain time, for part (partial) or all (total) of the leased property. The sublease contract, insofar as it derives from the lease contract or rather from the lessee’s title to the leased property, is always linked to the existence and validity of the lease contract on which it is based or from which it originates.

Therefore, the sublease contract is subject to the same causes of termination as the lease contract, also being terminated by the termination of the lease contract itself, from which it arises.

Unlike leases subject to urban lease legislation, lease contracts regulated by the Civil Code, as a general principle, authorize the lessee to sublet the leased property either partially or totally, without prejudice to his responsibility for compliance with the contract with the lessor. This is because the Civil Code does not regulate the lease contract as a purely personal contract.

The parties, however, may establish in the lease contract the clauses they deem appropriate, and among them they may introduce an express prohibition of subletting the leased property. In such cases, the violation of the prohibition of subletting expressly agreed in the lease contract may entail, at the request of the lessor, the termination of the lease contract and compensation for damages, or only the latter, leaving the contract in force ( CC art.1255 and 1556 ).

Therefore, in order to grant a sublease in contracts governed by the Civil Code, it is sufficient that the landlord has not expressly prohibited it, while in the case of a lease assignment , the landlord’s consent is required.

Object

The leased item or part of it may be subject to sublease, constituting a total or partial sublease , and provided that the use or benefit for which the sublease is agreed falls within the scope of the purpose agreed upon in the lease contract from which it is derived.

Distinction with the transfer

 The sublease should not be confused with the transfer. In addition to the fact that the latter requires the express consent of the lessor, in the transfer, the transferor or lessee transfers to the transferee all the rights and obligations arising from his lease contract, the transferee subrogating himself in the legal position of the lessee. It entails the transfer of the tenant’s rights and obligations to a third party, leaving the transferee-lessee outside the lease relationship established at the time. All of this, exclusively on the same original contract , which remains unchanged, fully respecting all its clauses, but the transferee subrogating himself in the position of the original lessee.

The sublease contract is instead a new lease contract, but with a certain successive tract with respect to the lease contract previously entered into by the lessee. Consequently, since there is a new lease contract that binds the lessee with the subtenant, it is necessary to refer to the content of the sublease contract, in order to know the rights and obligations of the subtenant and the extent of his right over the leased property. Therefore, there are two contracts , the lease contract, which binds the lessor with the lessee, and the sublease contract, which binds the lessee-subtenant with the subtenant.

Actions against the subtenant

(CC art.1551 and 1552)

specific actions are foreseen. of the landlord towards the subtenant, even if they have not entered into any contract between them.

Thus, without prejudice to his obligation to the sub-lessor, the sub-tenant is bound in favour of the lessor for all acts that refer to the use and maintenance of the leased property in the manner agreed between the lessor and the lessee. This saves the possibility that the lessor, who is the first interested party in ensuring that the terms of the lease agreement granted by him are respected, may take action against the sub-tenant who infringes it, even if the agreements he has reached with the sub-lessor are different.

On the other hand, the sub-tenant remains obligated to the lessor for the amount of the price agreed in the sublease that he owes at the time of the demand, considering the advance payments not to have been made if they have not been verified in accordance with custom. Therefore, the lessor is granted express legitimacy to take action against the delinquent sub-tenant and obtain payment of the amount stipulated as the price of the sublease. A type of subrogatory action is specifically established for the lessor.

Compensation for damages

(CC art.1556 )

Both the landlord and the tenant may request compensation for damages in the event of non-compliance , whether or not it is linked to the termination of the contract.

The legal text has a great parallelism with the power to resolve reciprocal obligations due to non-compliance by any of the parties, allowing the injured party to choose between compliance or resolution, with compensation for damages and payment of interest ( CC art.1124 ).

The provision provides for the termination of the lease contract when the specific obligations for leases are breached, with the failure to comply with any of the obligations being sufficient for compensation to be demanded ( CC art.1554 and 1555 ).

It is not necessary for the exercise of the action to proceed with a prior request , but one can resort directly to judicial action, deciding in that action which of the two legally provided means to act:

– resolution and compensation; either

– compensation and subsistence of the contract.

Once one path is chosen, the other cannot be chosen.

Forms of compensation

Compensation may consist of:

• Emerging damage, which can be translated into the loss that has actually been suffered.
• Loss of profits, or earnings that have stopped being obtained.

The doctrine usually gives an objective concept of damage, defining it as any material or moral loss caused by contravening a legal norm that a person suffers and for which another person must be held responsible.

Unlike consequential damages , which can be clearly proven to be real and effective, loss of profits is based on the presumption of how events would have occurred if the damaging event had not occurred, if the termination due to breach of contract by the landlord or tenant had not taken place.

It is necessary to consider the profit lost due to the non-compliance of one of the contracting parties, a profit which, in the event of litigation, must generally be determined by an expert, whose opinion will be assessed by the judge according to the criteria of sound criticism.

Damages must be proven . Even in cases where a contractual clause has set a minimum amount for damages in the event of non-compliance, the damage or loss suffered must be proven.

CHAPTER II-NON RESIDENTIAL LEASE

Concept

A lease for a use other than housing is defined as one that, falling on a building, is not primarily intended to satisfy the permanent housing needs of the tenant and his family ( LAU art.3.1 and 7.1 ; AP Barcelona 16-12-04, EDJ 244088 ).

The purpose of the contract can be as diverse as the parties wish.

In particular, those leases that are entered into are included in this regime ( LAU art.3.2 ):

– by season, be it summer or any other (nº 1370 ); and

– to carry out an industrial, commercial, artisanal, professional, recreational, assistance, cultural or educational activity on the property.

Due to these uses, the following leases are included in this legal system, for example:

– a dwelling, if it is not used permanently;

– business premises (no. 1333 s. );

– of warehouses;

– for professional offices;

– for non-profit social, cultural or recreational activities; or

– of properties leased by public administrations (no. 1360 ).

Typically, the property that is the object of the lease has as its main purpose the exploitation or development of an economic activity (industrial, commercial, artisanal, professional, etc.), with the exception of those expressly excluded from the scope of application of the LAU (agricultural, livestock, forestry, etc.).

It is common to specify and delimit the activity for which the tenant is going to use the property. It is also common for the contract to provide that any modification of the agreed purpose without prior written authorization from the landlord constitutes grounds for termination of the contract. Non-use of the leased premises may also give rise to termination.

specific use is agreed upon , it is understood that the tenant may use the property for whatever purpose he or she deems appropriate during the term of the contract.

Although the regulation does not expressly state it, it can be understood implicitly that the property rented for use other than housing must meet the health and hygiene conditions necessary for the exercise of the activity for which it is to be used ( LAU art.3 ; AP Girona 19-9-08, EDJ 267420 ; AP Córdoba 16-4-02, EDJ 24184 ).

Clarifications

1) A model of a premises lease contract is included in no . 12080 .

2) Regarding the energy efficiency certificate , see no. 436 s.

last update

Catalonia. Decree Law on housing rentals

(Actum 5/24, May 2024)

Catalonia Legislative Decree 6/2024 on urgent measures in housing matters is repealed.

 Agreement of the Permanent Commission of the Parliament of Catalonia 23-5-24, DOGC 27-5-24

With effect from 27-5-2024 , DL Catalonia 6/2024 on urgent measures in housing, which came into force on 26-4-2024, has been repealed due to lack of validation in the Catalan Parliament.

Agreement of the Permanent Commission of the Parliament of Catalonia 23-5-24, DOGC 27-5-24

latest update

Catalonia. Legislative changes in the field of housing rental

(Actum 4/24, April 2024)

A series of measures related to rental housing are being established in Catalonia.

 L Cataluña 18/2007 art.15.2, 59.g, 61.2.fa i., 66.2, 66 bis, 123.4, 124.1, 124.4, 125.2f, 125.4 redacc DL Cataluña 6/2024, DOGC-245-4

 L Catalonia 13/1996 art.7.1 redacc DL Catalonia 6/2024, DOGC 25-4-24

 DL Catalonia 1/2015 art.2.2 and 3 redacc DL Catalonia 6/2024, DOGC 25-4-24

 DL Catalonia 6/2024 disp.adic., DOGC 25-4-24

MARRI no. 128 , 427 , 433 , 457 , 1005 , 5382 , 5480 , 5460

With effect from 26-4-2024, a series of measures are established in Catalonia whose main purpose is to prevent many owners of rental properties from trying to evade the protection granted to tenants by the legislation on housing leases. Such fraud It is basically being carried out in an attempt to pass off rentals that are actually housing rentals as temporary.

In this regard, Catalan housing legislation is modified in the following aspects related to renting:

• Among the mandatory information that must be included in the advertising of a rental property located in an area with a tense residential market and including its price, is the price resulting from applying the reference price index system ( Catalonia Law 18/2007 art.59.g ).

Failure to do so constitutes a minor infringement in the field of consumers and users of housing in the real estate market ( Catalonia Law 18/2007 art.12.2.f ).

Specifically, a period of 5 days is established for the content of housing rental advertisements published before 26-4-2024 to adapt to these provisions.

• In the offer and lease contract , the landlord must now include the following information ( Catalonia Law 18/2007 art.61.2.faiy art.66.2 ):

– the rental price resulting from applying the reference price index system, justified by the supporting document obtained from the public consultation system;

– the price of the last rent of the lease that has been in force in the last 5 years in the same dwelling; and

– if the property is located in an area with a current tense residential market, the status of the owner of the property as a large property owner.

• The character of therental of housing , and the application of its regulation, to contracts signed on a temporary basis for professional, work, study, medical care or assistance reasons, provisional situations such as waiting for delivery of a home or return to the habitual residence, or for other similar uses in which a home is required ( Catalonia Law 18/2007 art.66 bis.1 ).

Likewise, all contracts in which ( Catalonia Law 18/2007 art.66 bis.2 ) are considered residential leases :

– a specific duration is provided for, but a temporary rental purpose is not expressly indicated; or

– where a temporary cause is indicated, but this is not documented or such documentation is not attached when posting the bond.

Finally, room-based leasing or any other type of physical or contractual fragmentation is also considered to be a residential lease. Therefore, the sum of the rents agreed in several simultaneous lease contracts for a dwelling located in an area with a tense residential market cannot exceed the maximum rent applicable to the unitary lease of the dwelling ( Catalonia Law 18/2007 art.66 bis.4 ).

• It is considered a lease for a different useto the one that is exclusively for leisure, vacation or recreational purposes, stating this in the contract, duly accrediting it and depositing the supporting documentation together with the deposit ( Catalonia Law 18/2007 art.66 bis.3 ).
• It is a rental infringement to set a rent that exceeds the maximum amount allowed for renting a dwelling subject to the price containment regime. The degree of infringement depends on the difference between the two prices:

– it is a very serious offence when the income is more than 30% ( Catalonia Law 18/2007 art.123.4.a );

– it is an infraction serious when it exceeds between 10 and 30% ( Catalonia Law 18/2007 art.124.4 ); and

– it is a minor infraction when it exceeds less than 10% ( Catalonia Law 18/2007 art.125.4 ).

• In relation to the cause or purpose of the contract, the following are also infringements:

– of a very serious nature when a fraudulent one is established to avoid the application of the rights and guarantees recognized to the tenants, declared as such by a final court ruling ( Catalonia Law 18/2007 art.123.4.b ); and

– of a serious nature , not stating it in the lease contract ( Catalonia Law 18/2007 art.124.4.b ).

• It is now considered a serious infringement to pass on to the tenant the costs of real estate management , as well as those of formalizing the contract ( Catalonia Law 18/2007 art.124.4.b ).

housing policy in this autonomous community are established :

• It is now considered a serious infringement not to provide information in a timely manner regarding the data that must be registered in the Register of vacant homes and homes occupied without an enabling title and in the Register of large property owners ( Catalonia Law 18/2007 art.124.1.f ).
• In addition to the areas delimited as areas of first refusal and right of redemption in favour of the Administration in the Territorial Sectoral Housing Plan, the Administration may exercise this right in transfers that occur within the areas declared as a tense residential market ( Catalonia Law 18/2007 art.15.2 ).

Specifically, the transfer of any home located in an area declared to be a tense residential market that is owned by a large holder, a legal entity, that is registered in the registry of large housing holders is subject to the right of first refusal and withdrawal of the Generalitat Administration ( DL Catalonia 1/2015 art.2.2 ).

• In order to have greater resources to invest in public housing, the percentage of availability that the Catalan Land Institute must maintain of the rental deposits to guarantee the corresponding cancellations and returns is reduced from 10% to 5% ( Catalonia Law 13/1996 art.7.1 ).

Whatever the agreed activity – even if a specific activity is not agreed – the tenant has certain limits in carrying it out .

Thus, the owner must comply with the rules governing the operation of the community of owners of which the premises are part, if applicable; in particular those prohibited in the statutes and those that contravene the general provisions on annoying, unhealthy, harmful, dangerous or illegal activities.

It is advisable to attach a copy of the statutes by which the community is governed to the contract as an annex, or at least deliver it to the tenant .

The landlord may reserve the right to access and inspect the premises to verify that they are being used correctly . In this case, a notice period is usually provided and access must be made within hours that do not disrupt the development of the activity.

Clarifications

In the event of annoying or prohibited activities being carried out , the president of the community, on his own initiative or that of any of the owners or occupants, may require whoever carries out such activities to immediately cease them, under penalty of initiating the appropriate legal action. The prior request is made to the tenant, but the owner is also warned of the tenant’s conduct, so that he may even be the one to exercise the action to terminate the contract, pursuant to LAU art.27.2 e .

The following are excluded from the regime of these leases:

– industrial leasing (no. 7000 );

– leasing of land;

– parking spaces and storage rooms, when they do not constitute an accessory or complementary element of the rented premises; and

– the temporary transfer of use of the entire furnished and equipped dwelling in conditions for immediate use, marketed or promoted through tourist supply channels (no. 4000 s. ).

Duration

(LAU art.4.3 ; CC art.1256 and 1543 )

The duration of a lease for use other than housing is left to the free will of the parties , since legally there is no minimum or maximum duration period established.

Temporality is something inherent to leasing.

Generally, the duration of a lease for non-residential use is usually longer than that of a residential lease, thus allowing the tenant to recover, at the very least, the investment made at the beginning of the lease in the works for its adaptation and conditioning.

In long-term contracts, a right of withdrawal is usually agreed upon. unilateral withdrawal by the tenant every certain number of years, a date which usually coincides with the date of rent review at market prices (No. 1090 ).

Clauses are considered null and void those that:

– they agree to a perpetual or indefinite duration of the lease, as this is contrary to the temporary nature of the contract; and

– They establish an initial contractual term, but provide that upon its termination the lease may be extended at the sole will of the lessee, because, in addition to being contrary to the temporary nature of the contract, it is contrary to the prohibition that the validity and compliance of contracts be left to the discretion of one of the parties.

In the absence of an express stipulation in the contract and given that the LAU does not establish anything in this regard, the provisions of the Civil Code must be followed. Thus, the lease is deemed to have been made ( CC art.1581 ):

– for years, when an annual rent has been set, even if payment is made monthly;

– by months when it is monthly; and

– by days when it is daily.

Clarifications

1) Even though the tenor of the LAU could imply that the agreed duration could be indefinite , this solution violates the general provisions governing leasing contracts ( TS 9-9-09, EDJ 217416 ). The expression “indefinite duration of the contract” is a concept contrary to leasing, which is characterized by its temporary nature ( TS 31-3-21, EDJ 520183 ).

2) The perpetuity of the lease contract is an insurmountable obstacle to recovering possession and direct use of the property transferred by its owner ( AP Valencia 7-12-05, EDJ 288351 ).

3) When the tenant is a legal entity and a duration is agreed upon which, in practice, is indefinite – duration extendable annually at the tenant’s will -, it has been decided to resort by analogy to the figure of usufruct, understanding that the contract has been agreed upon for a period of 30 years ( TS 9-9-09, EDJ 217416 ; 14-11-12, EDJ 248606 ).

Compulsory compliance period 

In leases for non-residential use, it is common to agree on a minimum term of duration that must be complied with.

The duration of this period varies greatly, although in practice it usually ranges between 3 and 5 years, depending on whether the contract is agreed for a period of less than or greater than 10 years, respectively.

It is also common that, at the end of this period, the parties agree, in the event that the contract is extended, a review of the rent at the current market price calculated by more or less objective means.

The parties may also reach other agreements on the duration of the contract:

• Establish a single mandatory period from the start of the contract until a specific time, granting the tenant the right to:

– voluntarily terminate the contract at the end of said period, or extend it for one or more periods of equal or different duration up to the maximum duration; or

– choose between terminating or continuing the lease, so that, if you choose to continue, it will be extended to the total duration stipulated in the contract.

• Structure the total duration of the contract in two or more consecutive mandatory periods of equal or different duration, so that at the end of each of them, if the tenant decides to continue with the rental relationship, it is extended for the duration of each of them.

The above alternatives also allow for multiple variables regarding the setting of the notice period, the formalities required for the tenant to communicate his decision, the obligation or not to compensate the landlord for unilateral withdrawal or non-extension of the contract and other safeguards that the parties stipulate in each case.

Clarifications

Regarding the tenant’s withdrawal during this period, see no . 1312 s.

Legal extension

The possibility that, upon expiration of the established contractual term, the lease may be extended is a matter that remains at the discretion of the parties .

In the absence of an agreement , the existence of a compulsory extension is not legally provided for , so that, once the agreed term has expired, the contract is extinguished, without prejudice to tacit renewal (no. 1040 s. ).

The parties may agree , despite having agreed on a specific duration, that the contract be extended for one or more periods of equal or different duration to that originally stipulated. A notice period is usually set during which the tenant must notify the landlord of his decision to extend the contract. If this period elapses without the tenant making any statement in this regard, the contract ends.

Clarifications

If the contract is extended, the landlord may demand an increase in the deposit initially provided by adding to the original amount the amount derived from the update of the deposit ( AP Madrid 26-9-12, EDJ 223706 ).

Tacit renewal

(CC art.1566, 1567 and 1581)

Once the contract has ended, it may enter into tacit renewal, a legal relationship that consists of the creation of a new lease contract on the same property, based on the presumed consent of both parties by allowing continued use of the property after the lease ends.

The new contract reproduces the characteristics of the previous one, except for the duration .

It is understood to be done by years when an annual rent has been set – regardless of whether its payment has been divided into months -, by months when it is monthly, and by days when it is daily ( TS 26-9-18, EDJ 588456 ; 15-10-96, EDJ 7382 ).

The requirements for tacit renewal are:

contractual term agreed by the parties has ended , as well as the conventional or legal extensions of the LAU ( AP Asturias 27-9-99, EDJ 32505 ).

• It is necessary that the contract does not contain any prior agreement that excludes the applicability of tacit renewal.
• The tenant must remain in the rented property for at least 15 days after the end of the lease term or extension.
• The landlord must give his consent , which is understood to be the case when he has not expressly or implicitly expressed his will against the continuation of the lease.
• It is necessary that the landlord does not require the tenant to terminate the contract. This requirement must be understood in the broadest sense of notification of the tenant’s intention to terminate the contract.

Clarifications

1) There is no tacit renewal of the contract when it has been expressly excluded from it and the owner of the property informs the tenant of his desire to terminate it, even if he remains in possession ( TS 10-11-20, EDJ 715547 ).

2) The mere tolerance of the landlord, which allows the tenant to stay for a few days, for example, while moving , does not imply an extension of the contract ( AP Badajoz 18-10-04, EDJ 158107 ).

Economic obligations

The tenant ‘s main obligation is to pay the rent in the amount, time and form stipulated in the contract. The rent from the lease is the differentiating element from the mere precarious lease.

landlord is obliged to provide the necessary cooperation in order to receive payment. Failure to do so would not be a case of non-payment, but rather a case of non-collection. Whether the landlord has failed to provide the necessary cooperation for the payment of the rent, or has engaged in conduct that hinders the payment from being made, he is liable for breach of contract, which prevents him from requesting termination of the contract.

Failure to pay the rent is grounds for termination of the contract (No. 1297 s. ).

Another of the economic obligations that corresponds to the tenant for non-residential use is the payment of the deposit . Its regulation in the LAU is common for both types of lease, that of housing and that of non-residential use, therefore we refer to what is stated in no. 512 , taking into account, however, as a particularity for this type of contract that the deposit must be equivalent to 2 monthly rents , instead of a single monthly payment both in the initial payment and for the purposes of a possible update.

In practice, the parties may also agree on certain general expenses. and supplies (No. 1118 s. ).

Rent

Determination 

The payment of rent is obligatory for the tenant, he cannot suspend it alleging that the property has deficiencies that administratively permit the activity provided for in the contract, while he continues to enjoy the leased object ( AP Pontevedra 16-6-99, EDJ 28557 ).

free will governs the determination of rent . This freedom of agreement has given rise in real estate practice to certain modalities when the purpose of the property is to carry out a commercial activity.

The most characteristic modalities are those set out below.

Clarifications

1) An essential and supervening change in circumstances is one of the exceptions that case law has been admitting in relation to the principle of fulfilment of the contract – rebus sic stantibus clause -. Its application allows the modification of the contract to compensate for the imbalance in the benefits caused by said change, although it does not have any rescission, termination or extinction effects on the contract, except when the balance of the benefits is not possible in any other way ( JPI Cáceres 11-8-20, EDJ 649046 ). The rent initially agreed upon must be reduced when an unforeseeable change in circumstances has occurred which has also generated an imbalance in the benefits borne by the parties ( JPI Barcelona no. 20 8-1-21, EDJ 500275 ).

2) The autonomous communities lack the competence to establish regulations that directly affect the setting of rent in private rental contracts for uses other than housing: the determination of rent in this contract is subject to the autonomy of the will and the principle of freedom of agreement , in the terms provided for in the LAU art.4.3 and, additionally, in the CC art.1.255 , which is part of the bases of contractual obligations, reserved exclusively to the State by the Const art.149.1.8 ( TCo 150/2022 ).

3) In the context of the health crisis caused by COVID-19 , the possibility was established for the parties to reach agreements to reduce or suspend rent payments with different scope depending on whether or not the landlord could be considered a “large holder”. These measures, with different temporal scope, were established by RDL 15/2020 and later by RDL 35/2020 . After 4 months from the end of the state of alarm – which finally occurred on 9-5-2021 – a maximum period of 2 years was given for the payment of deferred rents, proportionally throughout the period, and as long as the contract remained in force.

Fixed income

Fixed rent is the determined monetary amount that the tenant must pay to the landlord for the use and enjoyment of the property being leased. This rent, which the landlord normally receives on a monthly basis, allows him to obtain a guaranteed minimum rent that can be increased by the variable rent ( AP Guadalajara 20-7-09, EDJ 185800 ).

Equity

 Variable rent is determined on the basis of some objective parameter whose values may fluctuate. This is common in leases for commercial uses or in hotel leases.

In the case of leases for premises – particularly in shopping centres – the variable rent is determined on the basis of the tenant’s sales volume. These clauses usually contain an obligation for the tenant to declare the sales volume and mechanisms that allow the landlord to verify the veracity of the declared figures. In the case of hotels, for example, the variable rent can be set according to occupancy levels.

Graduated or sectional rent 

The establishment of a graduated rent implies that the amount increases as the duration of the contract progresses, so that it has one amount the first year, a higher amount the second and so on ( AP Málaga 13-2-06, EDJ 92855 ; AP Salamanca 15-1-00, EDJ 24049 ).

Rent in kind or services 

It may be agreed in the contract that, for a certain period, the payment of rent will be in kind or services ; for example, the obligation to pay rent may be replaced in whole or in part by the tenant’s commitment to renovate or rehabilitate the property under the agreed terms and conditions.

Upon termination of the lease, the tenant may not under any circumstances request additional compensation for the cost of any work carried out on the property.

Lack of rent 

In lease contracts for offices, commercial premises or industrial warehouses, it is common to agree on a period at the start of the contract during which no rent is paid , since the tenant usually has to carry out some work on the property to adapt it to its needs and brand image (nº 1133 s. ). This is done because the tenant cannot exploit the property while the works are in progress.

The grace period for payment may include:

– the entire period of execution of the works;

– a certain period independent of the estimated period for the execution of the works; or

– until the opening date of the premises with a time limit.

In practice, it is most common to agree on a specific term , so that once it has expired, the tenant is obliged to pay the rent.

The lack of accrual is independent of the actions that the tenant must perform and their result:

– although the lack is usually justified by the need to do something that prevents the use of the property, this does not oblige the tenant to carry out any work or action to remedy the alleged defect; and, therefore,

– the lack of coverage is not necessarily linked to the actions to be carried out, so changes in cost or duration are not used to justify changes in the lack of coverage.

Clarifications

1) The substitution of income for works is similar to the lack of income in terms of its economic effects, since there is no obligation to pay rent in money, but it is completely different in its legal effects (No. 490 ).

2) When the lease falls on a communal property , the reduction of the amount of the rent, or the granting of a certain temporary grace period in payment, must be considered acts of ordinary administration, for which the agreement of the majority of the co-owners is necessary ( AP Barcelona 29-7-19, EDJ 658021 ).

Payment

The principle of freedom of form also governs the determination by the parties of the manner and place in which the payment of rent is to be made.

Actualization of the rent

The rent update is subject to the will of the parties . Since leases for non-residential use are usually long-term, it is common to find stipulations in the contracts that establish a mechanism for periodic updating, normally every year, setting an increase or decrease in relation to a reference index.

As a general rule, the updated rent is payable from the month following the month in which the landlord communicates the amount of the update.

Although it is less frequent, the parties may agree to exclude the updating of the rent during the entire term of the lease or during a certain period. In these cases, it is usually compensated by the agreement to increase the rent annually by an amount or percentage determined in the contract itself, regardless of the fluctuation of the official reference indices.

Update mechanisms 

The parties are not only free to agree on the updating of the rent, but also to establish the mechanism to determine said updating.

Thus, it is common in practice for the parties to establish clauses to stabilise the rent, setting its increase or decrease, or only its increase, by reference to objective and official indices .

Among these indices, the most widely used in practice is the Consumer Price Index (CPI), without prejudice to the use of others such as the Gross Domestic Product (GDP), the Euribor or, in general, any other that the parties consider appropriate to their interests, including the Competitiveness Guarantee Index established, in the absence of an agreement, for housing leases.

Another common mechanism for updating rent is the so-called rent review . This review is common in long-term contracts in order to prevent the rent from becoming outdated.

This review consists of comparing the rent applicable at a specific time in the contract with the rents that are being paid at that time in the free market for similar buildings located in the same area.

This rent is usually called market rent and is defined as the rent that could be obtained on the free market if the leased property were available for rent to third parties, taking into account the area in which the building is located, its category and state of conservation. A rent review is usually included in those long-term contracts in which the landlord wants to reserve the possibility of correcting imbalances that could occur as a result of price increases in the market.

Agreements that establish that the rent update will be carried out are considered valid :

• Only upwards , so that if, by applying the reference index, a reduction in income is appropriate, this is excluded, maintaining the amount in force at that time.

fixed percentage to the current income .

• Adding an additional margin to the reference index (e.g. CPI plus three percentage points).

Update Notification 

In the area of leasing for non-residential use, the landlord is not expressly required to notify the tenant of the rent update. However, it is obvious that for the update to occur, the tenant must be aware of it in one way or another. It is not required that it must be a reliable notification , although it is convenient to use some form that leaves evidence of having made the notification and its content.

Increase in Rent

There are various situations in which the landlord is recognized the right to increase the agreed rent.

Elevation for improvements

(LAU art.30)

Unless the parties agree otherwise when contracting, there is the possibility of raising the rent due to improvements that the landlord may make to the property, applying, in a subsidiary manner to the will of the parties, the provisions in this regard in the LAU for the leasing of housing (no. 500 s. ).

The effective increase in rent takes effect from the month after the works have been completed and the tenant has been notified of the new rent to be paid.

Assignment and sublease

(LAU art.32)

In the case of transfer or sublease (No. 1189 ) the landlord is entitled to an increase in rent in the following amounts :

• In the case of partial sublease , 10% of the current rent, regardless of the surface area occupied by the subtenant.
• In the event of a total sublease of the leased property, the increase would be 20%.

It is common for the landlord to agree to waive the rent increase in such cases.

Clarifications

The question is how to manage this increase in rent in a partial sublease , if there are several subtenants. There are two doctrinal positions:

– the increase will be 10% of the rent for each sublease, given that in these contracts the rent of the sublease may be higher than the rent of the main lease; or

– the rent should only be increased by 10% in total , regardless of the number of sub-tenants, because otherwise there could be an unlimited increase and, on the other hand, if the subleased surface area is irrelevant, the number of sub-tenants should also be irrelevant.

Merger, transformation or demerger of the lessee company

(LAU art.32.3)

When a merger, transformation or split-up of the tenant company takes place, the landlord is recognised as having the right to increase the rent in the same proportions as in the transfer or sublease of the property (nº 1110 ). However, the parties may agree that this will not occur or even a percentage of rent increase higher than that provided for by law.

notification to the landlord is also necessary, although the LAU does not refer to it expressly, because the landlord has the right to raise the rent from the moment the merger, transformation or demerger of the company takes place.

Failure to notify results in an increase in rent retroactively , from the month following the month in which the merger, transformation or demerger occurred, regardless of the period elapsed.

Clarifications

1) It is common to find clauses in which, in addition to the merger, transformation or spin-off of the lessee company, it is established that the change of control suffered by the latter gives the right to an increase in rent.

2) The right to increase the income occurs from the registration of the merger in the Commercial Registry ( TS 20-7-12, EDJ 154593 ).

General expenses and supplies

In contracts for uses other than housing, such as the rental of offices or premises in shopping centres, it is common practice that, in addition to the rent and regardless of the variations that this may experience, the payment of other amounts, or amounts assimilated to the rent , is agreed .

Among these expenses, the following should be highlighted:

– community of owners expenses;

– shopping centre promotion expenses;

– Real Estate Tax (IBI);

– cleaning, surveillance and general maintenance;

– general expenses for promotion and advertising.

These expenses are usually passed on to the tenant based on the percentage of occupancy that the premises represent in the total building or shopping centre.

Payment can be made monthly and for an estimated amount based on the previous year, with an adjustment being made at the end of the year based on the actual expenses incurred.

Failure to pay such amounts may result in termination of the contract (No. 1294 s. ).

The costs of using the premises – water, gas, electricity, air conditioning, telephone, etc. – are, in the vast majority of cases, the responsibility of the tenant, who must enter into the appropriate contracts with the respective supply companies in his/her name and at his/her sole expense, and are therefore not included in the rent.

However, when such supplies are centralized and managed by the landlord (e.g., shopping center or office building), nothing prevents them from being passed on by the landlord to the tenant based on their individual consumption and that which is attributable to them in the common elements.

Works

(LAU art.30 )

In relation to the works, freedom of agreement is established for the parties and, subsidiarily, the regulation established for conservation or improvement works or those of the tenant in the rental of housing (no. 560 s. ).

In any case, it is not enough to renounce the application of the LAU, but these agreements must contain a complete and alternative construction regime to it.

Since the most common lease contract for non-residential use is the local lease contract , we will now analyze the specialties derived from them.

Adaptation works 

It is common for the property being leased to require adaptation works to make it suitable for the development of the activity to which it will be dedicated.

In other cases, such works respond to the logical desire of the tenant to personalize or even to his purpose of reproducing in it, as far as possible, the configuration of other premises occupied by him, as is the case, for example, of franchises or, in general, of businesses with a certain brand image.

There may or may not be an agreement between the parties regarding these adaptation works:

• In the lease agreement for premises to set up a business, it is common to include a clause that provides for the landlord’s authorization so that the tenant can, before beginning the development of the business, undertake the works to adapt the premises to the agreed activity or activities.

Likewise, other agreements are common , establishing that:

– that the works are carried out by the tenant, both with regard to obtaining the relevant licenses and construction permits and with regard to the cost of their execution;

– that the works carried out by the tenant remain, at the end of the contract, for the benefit of the owner – with or without the right of the former to receive compensation; or

– that, upon termination of the contract, the tenant must restore the premises to the state they were in before the works, when this can be done without detriment to the premises – removal of signs, screens, alarms, etc. – The tenant must repair any damage that occurs as a result of this.

• When there is no agreement on the works, authorization to carry them out is understood to be implicit in the following cases ( TS 19-4-13, EDJ 67715 ; AP León 7-3-03, EDJ 83292 ; AP Sevilla 1-7-16, EDJ 217782 ):

– when the works are necessary for the installation, adaptation or conditioning of the leased premises, so that they can serve the agreed purpose. This presupposes that the premises do not initially meet the conditions required for the start-up of the business;

– when the works are carried out close to the date on which the contract is signed, and are therefore not considered as such if they are carried out much later.

In these cases, the burden of proof that there is consent to carry out the works falls on the tenant, and must be clearly deduced from acts or events carried out by the landlord, which do not admit any other interpretation ( TS 15-7-92, EDJ 7902 ; AP Madrid 25-5-04, EDJ 129586 ).

The execution of works not consented to by the landlord, when such consent is mandatory (No. 600 ), entitles the landlord to request the full termination of the contract (No. 10029 ).

Whether or not there is an express agreement on the adaptation works of the premises, there are certain limits that the tenant must take into account:

– may not carry out works that cause a decrease in the stability or safety of the premises; and

– may not carry out works modifying the configuration of the premises without the express consent of the lessor. The concept of configuration and alteration of the leased property is something contingent and circumstantial to be examined in each case.

Clarifications

1) Sometimes, the authorization for works to adapt a premises is usually accompanied by the granting of a grace period for payment of rent (No. 1077 ).

2) In order for the existence of tacit consent to be considered , clear evidence is required ( TS 5-4-96, EDJ 1339 ).

3) Regarding the cases in which the configuration of the property has been considered to be altered by the works, see no . 610 s.

4) The fact that the owner has consented to certain works does not bind him for future works ( TS 5-3-96, EDJ 1339 ).

5) The owner may make the authorization conditional on the prior preparation of the corresponding technical project (AP Valladolid 31-7-88).

Planning permission 

For the implementation and development of the activity it is necessary to request and obtain the corresponding urban planning licenses (activity or opening and works , occupation license, etc. ), without prejudice to other authorizations from the sectorial legislation applicable in each case (environmental, health, industrial authorizations, etc.).

In general, the urban planning legislation of the autonomous communities attributes the competence for processing urban planning licenses to the municipalities.

The building permit is mandatory for all businesses that carry out their activity in premises that must be adapted to obtain the opening license and for all those that have to carry out works.

To obtain this license, a municipal technician must examine the premises, indicating the modifications to be made:

major works , once they are carried out, an inspection is required to grant the opening license; and

– If the works are minor , a provisional opening license may also be granted.

AND

In practice, a clause is usually included in the contract making the tenant exclusively responsible for obtaining the necessary administrative licences and authorisations for carrying out the agreed activity, as well as the execution and cost of all works that may be required for this, on the part of the tenant. However, it is common for the landlord to undertake to cooperate so that the tenant can obtain the appropriate licence.

It may be agreed that the refusal of the licence will be grounds for termination of the contract, without the tenant having to compensate the landlord (No. 10053 ). Therefore, it is advisable that, before granting the lease contract, the tenant consults with a specialist in the field or with the competent body of the town hall of the town where the premises are located, about the urban classification of the property and its uses and about the possibility of obtaining the relevant licence.

Works after the adaptation of the premises 

Once the works to adapt the premises have been completed, the execution of any work by the tenant – with the exception of urgent repairs (no. 580 ) – is subject to the agreements made by the parties in the contract, or, failing that, to those established in the LAU.

The most common thing in this regard is that the execution of works is conditioned to the prior written authorization of the landlord, without the mere silence or knowledge of the works implying his consent ( AP Granada 21-12-07, EDJ 364008 ; AP Baleares 27-9-02, EDJ 109306 ).

Change of ownership

(LAU art.34 )

During the term of the contract, a change of ownership of the leased property may occur due to any of the circumstances set out in the following numbers.

The parties have absolute freedom to, by agreement, exclude, waive or modify the legal provisions .

Clarifications

sublease of the property is a different matter, since it does not imply a change in the parties holding the tenancy relationship. In the sublease, a new tenancy relationship arises with the first one continuing (nº 710 ).

Alienation of the leased property

(LAU art.29 )

The transfer of the leased property implies a change of ownership of the property and consequently of the person of the lessor. The position of lessor is now occupied by the purchaser, who, in principle, is subrogated to all the rights and obligations of the contract (nº 1174 ).

Furthermore, when the transfer is for a consideration, the lessee is granted a preferential right of acquisition (No. 1180 ).

Furthermore, since in these contracts the will of the parties prevails, in relation to the transfer of the property, they may have agreed:

– the express waiver by the tenant to continue with the lease if the property is transferred, in any case, or in certain cases, which would imply the termination of the contract from the acquisition by a third party; or

– the direct reference to CC art.1571 , according to which the sale of a leased property authorizes – but does not oblige – the purchaser to terminate the lease.

Clarifications

In the acquisition of a leased business premises through a foreclosure in which the landlord does not make use of his power to terminate the contract, the latter subsists, subrogating the purchaser in the position of the landlord ( TS 15-11-21, EDJ 738547 ).

Subrogation

(LAU art.29 )

In principle, if the parties have not agreed otherwise, the purchaser of the property is subrogated to the rights and obligations of the lessor, unless the latter can be considered a third-party mortgagee ( LH art. 34 ), that is, if he has acquired the property for valuable consideration and registers it in the Property Registry, without the lease being previously registered. In this case, it is presumed that he is a third party acting in good faith and is unaware of the existence of the contract, so the latter can be considered terminated.

In these cases, the discussion is about whether the termination occurs automatically or whether the purchaser can choose between terminating the lease contract – exercising, where appropriate, the eviction action – or continuing with it, as provided for in CC art.1571 , applicable subsidiarily to the will of the parties and LAU art.29 .

On the other hand, when the tenant is deprived of the lease before the agreed term, it must be considered that the transferring landlord is obliged to pay him the corresponding compensation for breach of contract ( CC art.1101 and 1571 ), calculated according to the rules provided in CC art.1106 and 1107 .

If the purchaser knew of the existence of the lease , either because it was registered or because, without being registered, he could have had this information by other means, unless there is a prior agreement to the contrary, he must be subrogated in the position of the first lessor and continue with the contract, since the requirements of LH art.34 ( LAU art.29 ) no longer apply .

If the acquisition of the property had been for profit , for example, by inheritance or donation , subrogation also occurs and the contract is not extinguished , since this purchaser does not enjoy more registration protection than that which his transferor had ( LH art.34.3 ).

Clarifications

1) In order to avoid subrogation , it is necessary that the landlord who transfers the property be the registered owner of the same and, in addition, that the lease agreement is not registered in the Property Registry, thus giving the registration of the lease agreement exceptional importance ( AP Albacete 13-5-04, EDJ 116475 ; AP Barcelona 30-9-09, EDJ 351498 ). A bona fide purchaser -and, therefore, subrogation does not occur- is the one who acquires by onerous title from the registered owner, trusting in the Property Registry, in which the existence of the lease is not recorded and registers his right in said Registry ( AP Albacete 13-5-04, EDJ 116475 ; AP Barcelona 30-9-09, EDJ 351498 ).

2) Good faith consists, on the one hand, in the belief by the person seeking protection under the registry that the person from whom he acquires the property is the owner of it and can transfer its ownership, and, on the other hand, in the ignorance or lack of knowledge of the existence of the lease. The purchaser of the property cannot invoke in his favor the good faith of the LH art. 34 , since it is public and well-known that there was a shop open and operating on the premises, so that a minimum activity of the buyer would have allowed him to have knowledge of the lease ( AP Alicante 22-5-03, EDJ 104016 ).

Right of first refusal

(LAU art.25 and 31 )

purpose of the right of preferential acquisition is to facilitate the tenant’s access to the ownership of the property that is rented, with preference or in substitution of a third purchaser, in the event that it is put up for sale.

In leasing for use other than housing, this right is not mandatory, so it can be excluded or modified by the the will of the parties . Likewise, in the absence of an agreement, the provisions of the LAU art. 25 for the housing lease contract (no. 635 ) apply .

In practice, the waiver of the right of preferential acquisition in leases for non-residential use is usually required by landlords of commercial and leisure premises, as well as in commercial parks or office buildings and, in general, by professional landlords for whom the ease of management of their buildings, having a sole owner, impacts the value of their investments.

Assignment of the contract

(LAU art.32 )

The assignment of the lease contract implies the transfer by the lessee (assignor) of his entire contractual position to a third party (assignee), who, as a result, replaces him in the contract with all the rights and obligations inherent to it.

Clarifications

1) The landlord has the right to an increase in rent in the event of transfer (No. 1110 ).

2) The provision of services by a third party within the premises, which are complementary to those initially provided for in the lease of the same, do not constitute an unconsented transfer. They are admissible provided that the object and nature of the lease are not distorted or the economic life of the business is altered by not being proportional to its result ( AP Alicante 5-6-19, EDJ 648891 ).

Requirements 

Unless otherwise agreed, the tenant may assign the lease without the consent of the landlord provided that two requirements are met:

– that a business or professional activity is carried out on the leased property; and

– notify the landlord.

Activity

(LAU art.32.1)

It is necessary that a business or professional activity be carried out in the leased property, but it is not required, however, that the activity be transferred along with the property, or that this involve direct contact with the public or with consumers or users.

There is no legal regulation regarding properties that are not intended for a business or professional activity. Part of the doctrine has interpreted that in these cases the tenant cannot sublease or transfer the property without consent. However, when the lease contract does not expressly prohibit it, the Civil Code allows the tenant to sublease, in whole or in part, the leased property, without prejudice to his responsibility for compliance with the contract with respect to the landlord ( CC art.1550 ). It could then be understood that this possibility extends to the transfer. 

Notification

(LAU art.32.4)

The transfer of the contract must be notified to the landlord:

– in a reliable manner , that is, by notarial means or by means of a certified fax with a receipt. The transfer must be deemed to have been reliably notified if the landlord appears and signs the document – public or private – in which the transfer is formalised; and

– within a maximum period of one month from the date on which the transfer has taken place.

As regards its content , the notification must indicate the date on which the transfer has been agreed and is effective, and the identification data of the transferee – name, surname or company name, address and NIF. It is not necessary to include the price of the transfer, except when the lease contract contains an agreement by virtue of which the landlord has the right to participate in a certain percentage of the same.

It is important that the notification states the effective date of the contract transfer, since it is from that date that the landlord can raise the rent (No. 1110 ).

The LAU does not indicate who is required to make the notification, so it may be made by the transferor tenant, the transferee or even a third party.

Clarifications

1) The admissibility of means of notification such as certified letter, fax, email, etc. is doubtful . It is necessary to look at the specific case and analyze whether, given the circumstances, it can be concluded that there is reliable evidence of receipt, its date and the content of the communication.

2) The notification to the lessor entity sent by burofax to the last address that was listed as its own in the Commercial Registry is effective, given that the lessee was not obliged to know the new address ( AP Valencia 19-7-11, EDJ 193991 ).

3) The purpose of the notification is understood to be fulfilled without the need for it when receipts are issued in the name of the transferee continuously and over a long period of time since its constitution ( AP Castellón 1-6-11, EDJ 202963 ).

4) A model for notification of transfer of premises is included in no . 12085 .

Transformation, merger or demerger of the lessee company

(LAU art.32.3 )

Any change that occurs in the person of the lessee as a result of the merger, transformation or demerger of the lessee company is not considered a contract transfer .

Due to the very nature of the operations stated, these assumptions are only applicable when the lessee is a company , not when the lessee is a natural person or an entity without legal personality (e.g. community property).

As in the case of the assignment, in these cases the landlord is recognized the right to increase the rent in the terms of no. 1113 , although the parties may agree in the contract on another percentage – higher or lower – and even the impossibility of increasing the rent.

Clarifications

1) There is no unauthorized transfer or assignment, either by the change of name of the lessee company, or by the sale of 99.9% of its shares, if the legal entity does not disappear ( TS 12-12-96, EDJ 9137 ).

2) The sale of all the shares of a public limited company to another company of the same nature, without there being a merger between them, does not entail, in itself, the loss of the legal personality of the company whose shares were sold, but both – transferor and purchaser – retain their respective legal personalities. It cannot in any way be said that the acquiring company has entered into the leasing of the premises of which the company whose shares have been sold was the lessee, but that the latter continues to retain this status, with its own legal personality ( TS 4-10-99, EDJ 29510 ).

3) A detailed study of these corporate modifications is carried out in no. 7550 s. Memento Sociedades Mercantiles 2024.

Transformation 

Transformation is the operation that allows the change of type or corporate form , and, therefore, the legal regime applicable to the company in the future, while its identity and legal personality remain unchanged, and continue to exist under the new form. It does not really involve a change in the lessee entity, so there is no need to speak of a transfer of the contract.

Clarifications

commercial companies is regulated , excluding, therefore, natural persons and those legal persons that are not commercial companies. However, the registry doctrine has admitted the transformation of an SRL into a professional civil company ( DGRN Resol 26-4-16 ).

Fusion 

A merger, whether by absorption or incorporation, is a procedure by which two or more registered commercial companies are integrated into a single company through the transfer of their assets en masse. However, a change in the legal entity of the lessee can only be observed in the event of:

– merger by absorption, in which the lessee entity is absorbed by another, not in which it is the absorbing entity; and

– merger by constitution of a new entity.

Cleavage 

The spin-off of companies is the inverse process of a merger, that is, instead of a business concentration, it is a disaggregation or separation consisting of the separation of the assets of a registered commercial company into two or more parts, each one to contribute to one or more companies.

The split may be total, partial or a segregation.

Death of the tenant

(LAU art.33 )

Unless otherwise agreed, in the event of the death of the tenant, the heir or legatee may be subrogated to the rights and obligations of the tenant until the termination of the contract.

This subrogation mortis causa presupposes that the tenant is a natural person , and therefore must be understood to be excluded for all those cases in which the tenant has the status of a legal person.

The parties, in application of the autonomy of the will, may exclude by agreement in the contract the application of subrogation mortis causa in the event of the death of the tenant, establishing that said death will give rise to the termination of the contract, or limiting the subrogation to certain persons, even if they are not heirs or legatees.

Requirements 

If there is no agreement on this matter between the parties, in order for subrogation to occur in the event of the tenant’s death, the following requirements must be met:

– business or professional activity;

– status of heir or legatee; and

– notification.

Business or professional activity

(LAU art.33.1)

Business or professional activities are those that involve the management of production factors, materials and human resources, or one of them, for the purpose of participating in the production or distribution of goods or services for a fee, that is, for consideration. Mortis causa subrogation is only provided for in the lease if an activity of this type is carried out on the property.

same activity be continued by the heir or legatee, which excludes, in principle, the possibility of changing the activity, as well as the transfer of the contract or subletting of the premises by them without the consent of the landlord.

By exception , it must be understood that those substituted in the position of the deceased tenant can modify the activity to be carried out in the premises when a specific purpose was not specified – for example, “any legitimate business activity”.

If the exercise of business or professional activity requires the possession of an academic or professional qualification – for example, a pharmacy – the heir or legatee must have it.

Otherwise, subrogation is not possible and the contract is terminated.

Status of heir or legatee

(LAU art.33.1)

The right of subrogation mortis causa is recognized to the heirs or legatees of the deceased tenant.

In this regard, it is necessary to take into account the wishes of the deceased tenant, so that a specific heir or legatee designated by him can be subrogated – provided that he also continues the activity and, where appropriate, has the necessary qualifications.

division and allocation of the inheritance must be followed , without, in principle, there being any obstacle to multiple subrogation (two or more heirs or legatees) or to all those who hold this right reaching an agreement and it being the hereditary community that is subrogated.

The law does not establish a quantitative limit on the number of subrogations, but it must be understood that it is unlimited, always within the term of validity of the contract.

Notification

(LAU art.33.2)

Unless otherwise agreed by the parties, the successor who intends to be subrogated has the obligation to notify this within 2 months from the date of the death of the tenant.

If within this period the successor or successors are not determined, it is sufficient to communicate the death of the tenant, indicating that, for the moment, the new tenant is the hereditary community, without prejudice to the rights being subsequently awarded to a specific person.

The notification must be made in writing , but it is not required to be authentic, so it can be made by any means that proves receipt (e.g., letter with a copy signed by the landlord, burofax, telegram with acknowledgment of receipt, by notarial means, etc.).

As regards the content of the notification, it seems logical that it should indicate the date and the fact of the tenant’s death, the identity of the substitute(s) or possible substitute(s) and the declaration that the tenant will continue to carry out the same activity in the premises as the deceased tenant. Although, in principle, it does not seem essential to attach the documents proving the content of said notification (e.g., death certificate, will, etc.), it is advisable to do so.

This notification may be completed by the representative of the vacant estate or any of the co-heirs.

Although failure to notify within the established period means that the subrogation does not occur, it is not legally foreseen whether this failure gives rise to the termination of the contract.

Although the lack of notification is not included as such among the causes that give rise to the termination of the contract ( LAU art. 35 ), for some authors this means that the subrogation does not occur and, therefore, the landlord can consider the contract terminated, because otherwise there would be a transfer that the landlord is only obliged to tolerate if it is carried out in accordance with the provisions of the law. However, for some authors, if such an effect had been desired, it would have been expressly included among the causes for termination of said rule.

Effects

(LAU art.33.1)

Subrogation mortis causa in the position of the deceased tenant is not an obligation, but a faculty .

If this option is chosen, the subrogated tenants take over the contractual position of the deceased tenant, assuming the rights and obligations of the deceased tenant until the termination of the contract, without any variation in the rent or other contractual conditions.

If none of the heirs or legatees is subrogated, either by their own will or because they are not in a position to continue with the same activity as the tenant, the lease is terminated, without prejudice to the liability of the successors for payment, from the hereditary estate, of the outstanding rents and those that accrue until the return of the premises to the landlord.

Termination of the contract

(LAU art.35 )

The regulation that prevails in this matter is the will of the parties . However, a list of causes is established that, without being a closed list, produce the termination of the contract. Thus, the parties have full freedom to:

– exclude the causes included in the LAU art.35 ;

– establish the causes of the LAU art.35 ;

– establish other causes.

If the parties have not stipulated anything in this regard, the provisions of the LAU apply.

Both parties may terminate the lease agreement in the event of non-compliance by the other party with an essential obligation thereof ( CC art.1556 ).

Likewise, in the event that one of the parties fails to comply with the provisions, incurring in fraud , negligence or delay or any other form of violation, the other party may claim compensation for the damages caused ( CC art. 1101 ), or compliance or resolution with payment of damages and interest in both cases ( CC art. 1124 ).

Expiration of the agreed term

The lease contract is of an eminently temporary nature , therefore, once the agreed term of the lease has expired, the contract expires. The tenant must vacate the premises and hand over possession to the landlord (No. 1241 ) and the landlord must return the rental deposit provided by the tenant (No. 540 ).

Furthermore, once the lease has ended, the landlord may be obliged to pay the tenant compensation for clientele (no. 1259 s. ).

Return of the property

(CC art.1555.2º, 1561, 1563 and 1564 )

Correlatively to the lessor’s obligation to deliver the premises in a condition suitable for the use for which they are to be put, it is the tenant’s essential obligation to return said premises at the end of the lease. He must remove all the property and accessories that are his own and that he occupies there until that moment (machinery, furniture, etc.). The landlord may require him to undo at his own expense any modifications introduced to it, even those authorized, unless otherwise provided.

The return of possession of the premises to the landlord normally occurs with the delivery of the keys to the property.

It is from that moment that the landlord can proceed to verify the condition of the premises and any possible damage or defects caused to the property and adopt, where appropriate, the measures he deems appropriate.

It is also necessary at this time that the actions of both parties comply with the criteria of good faith, which, from the landlord’s perspective, implies not refusing to hand over the keys without justification and, from the tenant’s perspective, not taking advantage of the handover to avoid any potential responsibilities.

If the landlord unjustifiably refuses to accept the delivery of keys, the tenant may make a notarial or, where appropriate, judicial deposit.

Recognition of the premises 

Once the keys have been handed over, in order to prove whether or not there is any damage or flaws in the premises, it is necessary to carry out an inspection of the premises. At this point, the inventory and the images of the initial state of the premises that the parties included in the contract become especially important and which now allow a comparative examination between the state of the property at the time of delivery by the landlord and the state it presents at the time of return by the tenant.

In order to facilitate proof of damage in a future claim, it is advisable that, at the time of inspection of the premises, the landlord resorts to, among others, the use of the following means:

• The assistance of witnesses , preferably an expert or expert who will assess the damage and write a report regarding the valuation, at least an estimate, of the cost of its repair.
• The use of technical means that allow obtaining or recording images of the state of the premises – camera or video.
• Request the presence of a notary in order to draw up a notarial record that records the condition of the property.

If it is found that there are defects and the tenant does not carry out the repairs that he is obliged to do in order to hand over the premises in good condition, the landlord may choose between:

– to legally claim compliance with said obligation, as well as, where appropriate, compensation for any damages caused (e.g. loss of a new lease); or

– assume the cost thereof by retaining or applying all or part of the deposit and, where applicable, any other additional guarantees established for this purpose and subsequently legally claim the excess not covered.

It is the landlord’s responsibility to prove the occurrence of the damage and its amount. However, the landlord is protected by a double presumption, so that, unless proven otherwise, it is presumed :

– the receipt by the tenant of the premises in good condition, in accordance with the agreed use and purpose; and

– the tenant’s guilt for the deterioration.

For its part, the tenant can rebut the presumption by proving that ( TS 30-5-08, EDJ 82721 ; AP Barcelona 23-4-13; 9-4-14):

– the return of the premises is made in the same conditions and state in which it was received; or

– the deterioration or loss was not due to his negligent actions, or those of the persons for whom he is responsible, and who acted diligently to avoid the damage.

Formalization 

Although it is not legally required, it is advisable that the delivery and receipt of the keys be documented in the termination agreement reached and the settlement of the contractual obligations assumed by each of them, in order to avoid subsequent claims.

Normally, this document is of a private nature and is usually preceded by some type of prior communication between the parties.

The content of said document must include, among other things:

– the return of possession of the premises to the landlord by handing over the keys;

– the condition of the premises;

– the existence of outstanding debts; and

– the bail situation.

Clarifications

1) The models of the lease termination agreement are found in no . 1270 s.

2) Regarding the restitution of the deposit and other additional guarantees , see No. 540 s.

Compensation for clientele

(LAU art.34 )

Requirements

In certain cases, the termination of a lease for non-residential use may give rise to compensation in favour of the tenant, known as “compensation for clientele”. However, given the dispositive nature of this rule, the parties may agree to exclude it.

The circumstances that must occur for the tenant to have the right to receive this compensation to arise are set out below.

last update

Compensation for clientele in the leasing of a business premises

(Actum 9/24, September 2024)

The tenant is entitled to compensation for clientele when, once the contract has expired due to the expiration of the term established therein, the activity to which the premises were dedicated is likely to generate a clientele that provides additional economic value that can be enjoyed by whoever occupies it next.

 TS 19-6-24, EDJ 598802

The Supreme Court has rejected the appeal filed by the owner of a premises ordered to pay the tenant of his premises compensation for clientele, after refusing to extend the rental contract that had expired due to the expiration of the term agreed in it.

After handing over the premises, the tenant sued the owner, claiming the amount that she believed was due to her in application of the LAU art.34 , as compensation for clientele. Although her claim was dismissed at first instance , her appeal was upheld, understanding that said compensation was appropriate because the owner had leased the premises to another company that immediately afterwards started the same hospitality activity, even keeping the commercial name and part of the staff that wanted to continue in the operation.

The Supreme Court considers that the requirements of the LAU art.34 are met for compensation to be applicable in this specific case:

• That it is a lease for use other than housing, which occurs in this case. The activity to which the tenant was dedicated may generate a clientele that gives the leased premises an additional economic value, derived from the people who regularly frequent it as regular consumers of its products. Customer loyalty that can be enjoyed by whoever replaces the tenant in commercial transactions.
• That, during the last 5 years, a commercial activity of sale to the public has been carried out. From a literal interpretation of the precept, commerce is considered, according to the first definition of the RAE dictionary, the purchase and sale or exchange of goods or services; and a bar is considered to be the place where drinks are served, which are usually drunk standing up, at the counter. Serving, in one of its meanings, means selling a product or merchandise.
• That the term of validity of the signed contract has elapsed.
• That the tenant has expressed, 4 months prior to the expiration of the term, his/her willingness to renew the contract for a minimum of 5 more years and for a market rent.

The third and fourth requirements are not questioned.

In this case, moreover, within 6 months following the expiration of the lease, a new tenant uses it for the same bar activity, even initially using the same business name and part of the staff.

The amount of compensation therefore corresponds and must be set in accordance with the provisions of the LAU art.34 , taking into account the value of one month’s rent for each year of duration of the contract.

TS 19-6-24, EDJ 598802

Cause of extinction 

The tenant’s right to compensation arises only if the termination of the contract occurs as a result of the expiration of the agreed term, and not for any other reason, even if the termination was caused by the landlord.

For these purposes, the term conventional is understood to include successive extensions or renewals.

Activity

For the right to compensation to arise, it is required that the tenant was carrying out a commercial activity of sale to the public.

The determining factor is that it is a public sales activity, that is, that there is direct contact with clients or consumers. For these purposes, the sale of goods in a shop or establishment and other activities that generate a clientele that is likely to be lost by the tenant or used by others (e.g. restaurant, cafeteria, gym, cinema, discotheques, etc.) must be understood to be included.

premises intended for offices, warehouses and closed storage facilities, professional offices, industrial, administrative, recreational, educational and cultural activities are to be considered excluded .

Clarifications

1) The requirement of sale to the public is not considered to be met when the premises are dedicated to language teaching ( AP Madrid 17-5-05, EDJ 87485 ).

2) The requirement of commercial activity for sale to the public is not met if the premises serve only as a warehouse ( AP Ciudad Real 17-6-04, EDJ 135979 ).

Term

The commercial activity must have been carried out during the last 5 years. According to the general criterion of the doctrine, when calculating this period the following must be considered:

– the duration of the contract, adding to the initial term any voluntary extensions eventually agreed upon or, where appropriate, the tacit renewal period; and

– successive leases by different tenants who have successively carried out a commercial activity of sale to the public in the premises, as a result of subrogation mortis causa , assignment of the contract or sublease.

Contract renewal offer 

For the right to compensation to arise, the tenant must have expressed his intention to renew the contract at least 4 months before the expiry of the agreed term. This offer must have been made, at a minimum, by:

• A further period of 5 years. However, there is no legally set maximum limit on the duration of the renewal offered by the tenant.
• A market rent . For these purposes, the following are considered as such:

– as agreed by the parties; or

– in the absence of an agreement, the one determined by the arbitrator appointed by them.

The offer to renew the contract may be made by any means that allows proof of receipt by the landlord – notarial means, certified fax with receipt, etc.

The proof of compliance with the legal requirements, in particular the manifestation of the intention to renew the contract with 4 months’ notice, is the responsibility of the person requesting it, who is the tenant ( AP Madrid 21-7-06, EDJ 350909 ).

If the landlord accepts the renewal offer, this can be considered a voluntary extension of the lease, which maintains the rest of its original content, unless the parties agree to additional modifications.

If the landlord does not accept the offer, the tenant is entitled to receive compensation for clientele, provided that the other legal requirements are also met.

Clarifications

In the event of a disagreement on the amount of market rent , it is up to an arbitrator who has no other limits in deciding the matter than his own sense of fairness. The arbitrator is not required to be a commercial real estate expert or professional. His intervention may be requested by either party.

Calculation of compensation 

For the determination of compensation, a time frame of 6 months after the expiration of the term is taken into account and the following situations are contemplated:

• Within this period, the tenant begins to carry out the same activity in the same municipality as he was previously engaged in. In this case, the compensation includes:

– transfer costs; and

– damages arising from the loss of clientele – loss of profits – that occurred with respect to the clientele that it had in the previous premises.

For this purpose, the client base that the new business has during the first 6 months of the new activity is taken into account. In the event of an actual loss of clients, the landlord is sued.

different activity within the term or does not start any activity at all , and the landlord or a third party carries out on the property within the same term the same activity or a similar one to that carried out by the tenant. The compensation is one month’s rent per year of the duration of the contract, with a maximum of 18 months’ rent.

Related activities are considered to be those normally suitable for benefiting, even if only in part, from the clientele attracted by the activity carried out by the tenant.

In the event of a lack of agreement between the parties on the amount of compensation, it shall be set by the arbitrator they have appointed or, failing that, by the one appointed by the court in the corresponding ordinary procedure.

Clarifications

1) The calculation of the 6-month period must be carried out from date to date ( CC art.5.1 ).

2) It must be the same activity , not a similar or related activity.

3) It is irrelevant the title under which the tenant occupies the new premises where he continues to carry out the same activity (lease, usufruct, ownership).

Loss or ruin of the leased property

The law does not specifically provide for the termination of the lease as a result of the loss or declaration of ruin of the property. However, the doctrine is unanimous in considering that this occurs when the leased property is destroyed , unless otherwise agreed by the parties .

The loss of the leased property refers to those cases in which it ceases to be habitable , thus failing to comply with the purpose pursued in the contract, provided that this is not attributable to the landlord. The latter is obliged to act with due diligence by carrying out the necessary repairs on the leased property, to prevent it from deteriorating to the point of becoming uninhabitable ( AP Madrid 25-1-07, EDJ 63708 ).

The cause of such destruction is a different issue, since, except in cases of force majeure or fortuitous event, if such destruction is attributable to one of the parties, the guilty party must pay the other party the corresponding compensation for the damages and losses caused by such reason.

The loss may be total or partial. The concept of loss or destruction of the property includes:

• The material or physical loss of the property, which occurs as a result of a catastrophic event and is produced instantly or also as a result of significant deterioration, loss or breakdown.

Legal loss or loss arising from the existence of regulations, or acts in execution of regulations, that prohibit or make impossible the use of the leased property in accordance with its intended purpose, for example, forced expropriation, when it is a coercive deprivation of ownership of the property.

Clarifications

For one part of the doctrine , the termination of the lease for use other than housing due to loss or destruction of the property is based on the extension to this type of contract of the assumption regulated for the lease of housing ( LAU art. 28 ), because, although among the references to the regulation of the lease of housing made by LAU art. 30 this precept is not expressly included, it is made to the conservation of the home ( LAU art. 21 ), which in turn refers to the same. Hence, the provisions of the LAU on the termination of the contract due to ruin or loss of the home, is also applicable to contracts for different uses.

For other authors , however, the termination of the lease for this reason does not derive from the LAU , but from the termination of obligations due to loss of the thing regulated in the Civil Code, of supplementary application ( CC art.1568 and 1182 ).

Termination for non-compliance

(CC art.1124 )

Breach of contract is understood to be any total or partial infringement of the obligations assumed in the contract. However, it is established case law that only breaches that frustrate the purpose of the contract and the legitimate aspirations or expectations of the party that complied give rise to the termination of the contract ( TS 31-5-07, EDJ 40205 ; 18-10-04, EDJ 159546 ; 6-3-05, EDJ 71419 ).

In the event of non-compliance by one of the parties with any of the obligations assumed in a lease agreement, the complying party has the option of:

– demand compliance with said obligation; or

– terminate the contract.

If compliance is chosen and this proves impossible, the termination of the contract can be requested later. In both cases, compensation for damages and payment of interest can be requested.

The resolutory action is exercised through ordinary or verbal procedures, in accordance with the rules applicable to each of them (nº 9500 s. ).

Resolution at the request of the landlord

Legally, there are a number of causes that entitle the landlord to request the termination of the contract by operation of law.

However, in this matter the will of the parties prevails, so they can freely:

– include in the contract, expressly or by reference, the causes of the LAU art.35 ;

– establish new causes; or

– exclude all or some of the legally provided causes.

Legal causes

(LAU art.35)

Unless otherwise agreed by the parties in the contract, the landlord is entitled to request the termination of the contract, causing its extinction, for the following reasons:

– non-payment of rent and other expenses assumed by the tenant;

– damage to the property caused intentionally;

– unauthorized works;

– annoying, unhealthy, harmful, dangerous or illegal activities; or

– the transfer or sublease without reliable and timely communication to the landlord.

For contracts signed before 6-6-2013 , the intentional causing of damage to the property by the tenant, or the execution of works that have not been consented to by the landlord, when this consent is necessary, are not expressly contemplated as grounds for termination ( LAU art.27.2.d ).

The change of activity is not included as a cause for termination in special legislation. However, in common civil legislation – of supplementary application – it is provided as an obligation of the lessee to use the leased property as a diligent father of a family, using it for the agreed purpose. Therefore, even in the absence of a contractual agreement, the lessor can request the termination of the contract if the lessee fails to comply with this obligation, provided, in addition, that the change of purpose is unilateral and substantial, with possible damages for the lessor.

Clarifications

1) Illegal activities include , among others:

– the activities of trafficking in toxic drugs, narcotics or psychotropic substances on one of the floors of the building ( AP Madrid 1-7-98, EDJ 27077 );

– arms trafficking;

– establish the headquarters of an illegal organization or association;

– the activity of exploiting prostitution by third parties, who introduce prostituted persons into the premises. Voluntary prostitution cannot be considered an illicit activity in the strict sense, but merely a nuisance activity when it objectively meets the prerequisites for such a classification.

2) Regarding activities that are considered annoying, unhealthy, harmful, dangerous or illegal , see no. 8472 s. Memento Inmobiliario 2024.

Conventional causes

(LAU art.4.3)

In application of the principle of free autonomy, the parties may include in the contract new causes for termination of the lease, such as:

– the transfer or sublease without the prior written consent of the lessor; and

– the change of the agreed destination; or

– lack of use of the same.

The termination effect of any of these clauses or others of a similar nature requires, however, a serious and essential breach and not a breach affecting accessory or complementary benefits. Delimiting this question is left to the discretion of the ordinary courts.

Clarifications

1) The doctrine has understood that the lack of use denatures the contract itself and its purpose, when it occurs under certain conditions of prolongation in time and provided that there is no cause that justifies the closure of the premises.

2) The placement of a bank’s ATM on the façade of the leased commercial premises does not constitute a partial transfer of the same that gives rise to the termination of the contract ( TSJ Madrid 18-2-03, EDJ 93311 ).

Termination at the request of the tenant

The tenant may terminate the contract by right for the following reasons :

– failure to deliver the property;

– failure to comply with the duty of conservation (no. 563 s. );

– that the landlord fails to comply with his obligation to maintain the tenant in peaceful enjoyment of the lease (No. 785 ).

Although nothing prevents the parties from including in the contract other causes of termination arising from other breaches by the landlord, the truth is that this is very rare in practice.

Clarifications

The denial of the change of ownership of the activity license in favor of the tenant, which prevents him from using the premises, allows him to terminate the lease even when it had been expressly agreed that this fact would not affect the lessor ( TS 20-4-22, EDJ 551157 ).

Unilateral withdrawal by the tenant

Unilateral withdrawal from the contract by the tenant constitutes a breach by the tenant of the obligation to respect the term of duration set in the contract, thus disengaging early from the contractual relationship. It generates the right of the landlord to terminate the contract or to demand its fulfillment until its termination, with compensation for damages and payment of interest in both cases.

In the case of leases for purposes other than residential use, a unilateral right of withdrawal is not expressly regulated or recognised, as is provided for the lease of a dwelling (nº 725 ). On the other hand, the jurisprudence denies for these contracts the analogous application of the right of unilateral withdrawal in the lease of a dwelling ( TS 23-7-18, EDJ 526228 ; 3-10-17, EDJ 196369 ; AP Madrid 1-3-05, EDJ 43307 ).

However, nothing prevents the existence of a pact. a contract that expressly authorizes the tenant to exercise the right to unilaterally withdraw in exchange for monetary compensation, in which case it would not be a breach of contract.

Clarifications

1) Taking into account the specific circumstances, the application of the compensation criterion for the withdrawal from the lease of a dwelling ( LAU art. 11 ) to these contracts has been accepted, since it is considered excessive in the specific case to force the tenant to pay the amount of the rent that would have accrued until the end of the lease, insofar as it was not proven that there were circumstances that would make it foreseeable that there would be a special difficulty in finding a tenant from whom a rent similar to that agreed could be requested ( TS 20-5-04, EDJ 40359 ). However, this guiding criterion should not be used indiscriminately, except when, due to the concurrent circumstances, there is no other way of setting the compensation; and, of course, in no case when it is manifestly insufficient to alleviate the damages caused to the landlord ( TS 11-2-16, EDJ 9662 ).

2) A model notification of withdrawal of premises is included in no . 12110 .

Compensation 

Regarding the consequences of the tenant’s unilateral withdrawal, the most recent jurisprudence understands that the determination of the compensation must be made taking into account the particular circumstances of each case. In this sense, several cases are distinguished:

a) If there is a contractual agreement on withdrawal, it may include:

• A clause that grants the tenant the right to terminate the contract in exchange for paying the landlord a certain amount of money ( penitential fine ). This amount is not subject to judicial moderation, since, in this case, it is not actually a matter of compensation or a conventional penalty, but of the price agreed by the parties in exchange for granting the tenant a right that the law does not recognize ( TS 6-11-13, EDJ 219925 ; 10-12-13, EDJ 261133 ; 23-12-09, EDJ 299934 ).

• A penalty clause in the event of early termination of the contract by the tenant. The agreed penalty replaces the compensation for damages and the payment of interest. Jurisprudence understands that the penalty clause cannot be applied completely and automatically and that the amount of the clause must be subject to moderation. If the landlord were to receive the entire penalty clause and, in addition, rents from a new tenant, there would be a clear unjust enrichment ( CC art. 1154 ; TS 18-3-16, EDJ 23782 ). However, it has also been admitted that payment of the agreed penalty clause is required even though, after the tenant’s breach, the landlord immediately entered into a new contract with a third party ( TS 14-2-18, EDJ 9572 ).

b) If there is no contractual agreement on withdrawal, two circumstances may arise:

• The tenant terminates the lease, but the landlord does not accept this and demands compliance , that is, payment of the outstanding rents until the end of the contract. The landlord does not claim compensation, but rather demands compliance with the obligations of the contract and the tenant may be sentenced to pay all outstanding rents until the end of the contract. There is no room for judicial moderation, since what is requested is not properly compensation or a penalty clause, but rather payment of the rents owed ( TS 23-7-18, EDJ 526228 ).

• The tenant expresses his desire to terminate the lease and the landlord accepts theresolution , claiming compensation for the damages caused – loss of profits. The moderation of said compensation is admitted, taking into account the concurrent circumstances, such as, among others, the difficulty of obtaining a new tenant, the decrease or increase in rents in the market, as well as the demand for rentals ( TS 9-4-12, EDJ 216658 ).

Clarifications

1) The amount of compensation arising from the tenant’s withdrawal from a business cannot be calculated by analogous application of the rule established for the leasing of housing, when the evidence easily indicates greater damages ( TS 19-12-22, EDJ 769904 ).

2) Acceptance of the delivery of the property and the signing of a document handing over the keys does not in itself imply the waiver by the landlord of the receipt of the compensation provided for in the contract in the event of unilateral withdrawal by the tenant or of the receipt of the rents owed ( TS 27-9-13, EDJ 192455 ).

3) The freely agreed upon extension is a term of duration of the contract, binding for the parties ( CC art.1091 and 1258 ; LAU art.4.3 ). If the tenant fails to give notice within the agreed period, the contract is extended for one more year, without the tenant being able to withdraw from the contract when the right of unilateral withdrawal is not recognised in the contract. In accordance with the agreement, the tenant agrees to the initiation of an annual extension and is obliged to pay the rent corresponding to the entire year of duration of the contract. In reality, there is no penalty clause to moderate, so CC art.1154 is not applicable . It is not a question of fixing the compensation for breach of contract, but of an action for compliance with the agreed term of duration of the contract ( TS 7-6-18, EDJ 96420 ).

Other causes

In addition to the causes analyzed in the preceding numbers, the lease is terminated or may be terminated superveningly for the following reasons:

• The acquisition of the leased property by a bona fide purchaser (no. 1171 s. ).
• The death of the tenant without the right to subrogation (nº 1214 ).
• The extinction of the landlord’s right of enjoyment, since the leases granted by usufructuaries, superficiary owners and anyone who has a similar right of enjoyment over the property, are extinguished when the landlord does so.
• The will of the parties, since mutual dissent constitutes a cause of extinction of obligations recognized by doctrine and jurisprudence ( TS 26-5-09, EDJ 120191 ), such that they are free to, at any time and without any other reason, put an end to it and, with it, to the reciprocal obligations contracted.

Particular assumptions

In the enumeration that the LAU art.3.2 makes of the activities to which the property that is rented for use other than housing may be dedicated, express reference is made to seasonal rental and to commercial, industrial, artisanal, professional, recreational, assistance, cultural, or teaching activities. However, this is not a closed list, and all those whose object is an urban property that is not going to be used as the tenant’s habitual residence may be included in this type of lease.

Among the aforementioned, commercial activity, with the leasing of a business premises, is perhaps the most common and representative type of contract.

Business premises

(LAU art.3.2 )

The current regulations omit an express reference to the leasing of business premises as such, understanding that said concept is implicitly included in the category of leases that, falling on urban properties, have as their primary purpose a use other than to satisfy the permanent housing need of the tenant.

On this basis, a business premise can be understood as a building or part thereof of an urban nature, which meets the precise conditions to be used – at least primarily – for the tenant to establish his business or professional activity of a lucrative nature.

Clarifications

In the ” old rent ” contracts, the contract for business premises was specifically regulated. In fact, the law distinguished between two types of rentals, that of housing and that of business premises (nº 2300 ).

Mixed use: premises and housing

 In certain cases, the property is used for mixed purposes, as it is used both as a home and for the development of a professional activity. The characteristics of this contract are the following:

– there is only one lease agreement;

– which covers a dwelling and a business premises; and

– a single income has been stipulated.

As regards the nature of mixed leases, the main or predominant element must be taken into account in order to classify them as housing or business premises. However, as a general rule, when the activity carried out by the tenant in the premises is his only means of livelihood, the business premises is considered to be the predominant one, when the activity carried out by the tenant in the premises constitutes his only means of livelihood ( TS 10-10-88, EDJ 7846 ).

It is also possible that in a mixed lease, the dwelling has predominance over the premises; this occurs when the use of the premises involves an accessory or derived activity for the tenant in relation to the possession of the dwelling.

A different case is when the lease is made for a use other than housing and, subsequently, the tenant establishes his/her dwelling there. In principle, the privileged rules that regulate the leasing of housing would not be applicable, unless the parties formalize a new contract or the tacit consent of the landlord to the tacit modification of the same can be demonstrated . In this last case, the tenant can compel the landlord to formalize the modification in writing.

Clarifications

1) The legal qualification of a contract does not depend on the name given to it by the parties, but on what they are legally, and in the event of a dispute, said qualification corresponds to the courts of instance ( TS 26-11-14, EDJ 204303 ).

2) Although the parties called the contract a residential lease, the lessee is a commercial entity and it is not possible for a commercial entity to have a permanent need for housing because it is not a physical person, but rather a registered office to carry out its corporate purpose. Thus, we are faced with a lease for use other than housing ( AP Alicante 3-10-02, EDJ 64635 ).

Distinction with industrial leasing 

Industrial leasing is the contract under which one of the parties, in exchange for compensation, transfers to another the operation of a company , understood as an economically productive organization, made up of a set of material and immaterial elements, necessary to develop said operation.

While in the leasing of a business premises the real estate element is transferred, that is, only a constructed space suitable for the business to be operated in, in the leasing of an industry the contractual object is composed of two elements ( TS 21-2-00, EDJ 2110 ):

– on the one hand, the premises, as a material support; and,

– on the other hand, the business or company established and developed therein, with the elements necessary for its operation, forming a whole patrimony.

Clarifications

Premises located in a shopping center, large store or other establishment 

Although in principle it is a lease for use other than housing, it has a series of peculiarities that make it a somewhat special lease: non-direct access to the premises; opening and closing hours; use of the common elements of the center; etc.).

Although these circumstances mean that, by virtue of the parties’ free will, specific clauses are included in the contract that are not common in other business premises contracts, this does not distort the leasing nature of the contract, provided that its object consists of the services inherent to this relationship, in particular, the transfer of use of premises for the development and operation of a business, in exchange for a certain price set in money.

Clarifications

Despite the easements arising from the integration of the premises into a shopping centre, the tenant is not deprived of his organisational independence to set up his business, so the rental law and not the common law is applicable to this type of lease ( AP Barcelona 23-6-11, EDJ 183222 ).

Lease contracts with merchants who set up in a shopping centre generally have a number of common elements:

Model contracts are often used with standard clauses that are imposed on the tenant, who has very little capacity for initiative or negotiation.

extensive and complex contracts , and frequently include the internal regulations of the center and the assumption by the tenant of a series of charges derived from said regulations.

• Although the contract is usually subject to the LAU, it frequently includes its own agreements , thus avoiding generic references to this standard.
• The duration of the contract usually depends on the size of the premises, with a certain proportional relationship to the leased surface area. The larger the surface area, the longer the agreed duration.
• It is common in this type of contract to establish a minimum period of mandatory compliance for the tenant, to which a substantial compensation is usually linked in the event of non-compliance or unilateral withdrawal before said period concludes.
• Additionally, it is common that, together with the minimum fixed income, another variable income is agreed , based on the sales volume in a given period (year, semester, quarter) and payable with the same or different periodicity (e.g., annually).

The rent update is usually carried out annually, based on fluctuations in the CPI or market rent.

Normally, it is the landlord – owner of the centre – who manages the common services related to the maintenance and care of the centre, as well as all those that favour its best operation, maximum influx of public and the highest level of the same. Such services usually include, among others, cleaning, maintenance (fire prevention devices, doors and escalators), and the security of the common areas and promotion and advertising (promotions, animations, institutional).

Therefore, in order to maximize the profitability of the center, it is most common for the contract to stipulate the obligation of the tenants of the different premises to contribute to covering the costs. expenses incurred for this purpose, based on the percentage represented by the surface area of each premises or operating unit or other criterion, through the payment of an amount similar to rent.

Local under horizontal property regime

(LPH art.13.3 and 17.1 and 6)

Nothing prevents commercial premises that are located in a building subject to the horizontal property regime and have the character of a common element from being leased by the community of owners.

In such case, and the premises not having a special purpose assigned in the constitutive title of the horizontal property, for its leasing an agreement of the board of owners is required , adopted by the qualified majority of the favorable vote of three-fifths of the total number of owners who, in turn, represent three-fifths of the participation quotas.

The contract is awarded by the president of the community, who is the legal representative of the community.

Clarifications

The case law has flexibly interpreted the expression “not having a specific purpose assigned “, extending it to leasing for activities that are not incompatible with the assigned purpose. For example, leasing part of a space designated as a garden for the installation of a mini-golf course ( TS 3-6-09, EDJ 112085 ). If the premises to be leased have a specific purpose assigned in the constitutive title of the community of owners and the lease involves its modification, the unanimity of all the owners is required ( LPH art.17.6 ).

Tenant management

(L 33/2003 art.122 to 128 ; RD 1373/2009 )

Public administrations may lease real estate to house public facilities. These leases are governed by the LAU, as leases for use other than housing, with the specifications contained in Law 33/2003 , given that the rights derived from the lease become property of the State.

The authority to lease real estate that the General State Administration requires to fulfil its purposes corresponds to the Minister of Finance, at the request, where appropriate, of the department concerned.

Likewise, it is the responsibility of the Ministry of Finance to declare the extension, novation, early termination or change of occupying body or organization.

Once the lease has been agreed, it is the responsibility of the department or agency occupying the property to exercise the rights and powers and to comply with the obligations of the tenant.

The instruction of these procedures is the responsibility of the General Directorate of State Assets.

Clarifications

1) For these purposes , the State, the autonomous communities, the provinces, the municipalities and other entities or corporations under Public Law are considered Administration .

2) The property legislation of the autonomous communities or local entities must be followed to determine the special features that, where applicable, their leases may have.

3) The leasing of real estate by public bodies linked to the General State Administration or dependent on it, as well as the extension, novation or early termination of the corresponding contracts is carried out by the presidents or directors of those, who are also responsible for their formalization.

4) For the conclusion of financial leasing contracts and other mixed leasing contracts with an option to purchase, the rules of jurisdiction and procedure established for the acquisition of real estate apply ( L 33/2003 art.128 ).

Procedure

(L 33/2003 art.124)

Leases for the Administration are agreed upon through a public tender unless, in a justified manner, due to the peculiarities of the need to be satisfied, the conditions of the real estate market, the urgency of the contract, or the special suitability of the asset, it is considered necessary or convenient to agree upon them directly.

Once the lease has been agreed, it is the responsibility of the department or agency occupying the property to exercise the rights and powers and to comply with the obligations of the tenant.

Proposals for leasing, renewal and extension are subject to a technical report , which must include the corresponding market study , and to the State Attorney’s Office or the body responsible for providing legal advice to public entities linked to the General State Administration.

In the case of leases to be arranged by the General State Administration, the request from the Ministry of Finance must be accompanied by the offer from the lessor and the indicated technical report.

The formalisation of the lease contracts of the General State Administration and their modifications is carried out by the General Director of State Assets or by the official to whom he delegates. However, the Minister of Finance may entrust the formalisation to the undersecretaries of the ministerial departments.

Lease contracts must be signed with an express mention that the leased property may be used by any body of the General State Administration or of the public bodies dependent on it. However, the General Directorate of State Assets, at the proposal of the corresponding ministry, may authorize the signing of the lease for the exclusive use of the property by a specific body of the General State Administration or its public bodies when there are reasons of public interest that so advise.

Early resolution

(L 33/2003 art.127)

The Administration is granted the right to novate, terminate, change the lease, etc. In this regard, it should be noted that, in the event of early termination of the contract by the department or agency occupying the property, it may be occupied by another, with appropriate notification being given to the landlord, but the contractual novation will be obligatory for the latter without any increase in rent.

When the department or public body occupying the leased property plans to vacate it before the agreed term or the expiration of the legal or contractual extensions, it must notify the General Directorate of State Assets at least 3 months in advance of the planned date of eviction.

The General Directorate of State Assets, if it deems it appropriate, will forward this communication to the different ministerial departments, which may request the property to be made available within a period of one month. The General Directorate of State Assets itself decides on such request. This resolution is notified to the landlord , for whom the contractual novation is obligatory, without any increase in rent being necessary.

Seasonal rental

(LAU art.3.2 )

Seasonal leases are included within the scope of special urban lease legislation , as a use other than housing .

These leases contain a note of temporality that excludes the permanent use of housing, typical of LAU art.2 .

The temporality does not derive from the agreed term, but from the purpose of the occupation. It is not the agreed duration that determines whether a lease is seasonal or not, but whether the lease is intended to satisfy or not a permanent housing need of the tenant ( TS 15-12-99, EDJ 40446 ; AP Zaragoza 3-12-08, EDJ 348091 ).

This includes rentals of a property for a second home, where the lease may last for one or several years. The main difference in this case lies in the fact that the tenant simultaneously uses another property to satisfy his permanent housing needs.

The reason for the temporary nature of the contract must be stated in the contract; the reason for occupying the dwelling as a temporary residence must be real and true. It is not enough to enter into the contract for a short period coinciding with a season of the year to qualify it as a lease for use other than housing ( AP Barcelona 1-6-04, EDJ 84805 ).

The practical consequences of considering a seasonal lease as non-residential use are:

– As regards the duration , seasonal leases end on the day specified in the contract and the tenant cannot avail himself of an extension of the contract , as is permitted in the case of a residential lease;

– seasonal leases are governed , first of all, by the agreements reached in the contract and then by the provisions of the LAU art. 29 to 35 ; on the other hand, although housing lease contracts are subject to the agreements, clauses and conditions of the contract, these must always be within the framework established by the LAU art. 6 to 28 ;

– Regarding the deposit , in housing leases one month’s rent must be deposited , while when considering seasonal leases for use other than housing, two months’ rent must constitute the deposit ( LAU art.36 ).

Clarifications

1) The temporary lack of use of the leased property is possible, without this circumstance necessarily implying that we are dealing with a seasonal lease. The lessee entity has the right not to open its business to the public during those months in which it is not economically profitable, without this fact affecting the lease contract, configuring its nature, or producing a tacit novation of the same ( AP Baleares 16-7-02, EDJ 46323 ).

2) The fact that art. 3.2 of the LAU talks about construction excludes seasonal rentals of elements such as caravans, motorhomes or even tents.

3) The lease must be made by season, whether it is summer or any other, since in addition to leases for summer seasons, other types of leases are also common , such as apartments in winter resorts for the entire ski season, or country houses during the hunting season.

4)  Seasonal leasing must be differentiated from the rental of tourist accommodation .

Local for coworking

Coworking is a formula that enables a space for different creators to work, saving the cost of their own premises by instead accessing a shared space where several of them meet.

Coworking spaces are therefore premises that offer basic services (network connection, physical work space, etc.) and common services to professionals who set up shop in these premises to carry out their activities.

Coworking, as such, is a lease in which the manager offers this space that the coworker rents in exchange for a price, weekly or monthly.

The coworker may have access to other spaces within the organization: services, common facilities for meals, meeting rooms, etc. These additional spaces are subject to certain guidelines that allow their shared use.

From this rental perspective, it must be absolutely clear which services are offered and which are not; what access the coworker has to them, and whether these services are included in the price (rent) or are added services that the coworker must contract separately.

The relationship between the coworker and the person responsible is purely commercial and not of any other nature, since the coworker does not work for the person responsible, he is independent and acts on his own account. The person responsible does not obtain any benefit from the work carried out by the coworker beyond the payment of rent.

The rental relationship between the parties generates the typical duties. On the one hand, the organizer or lessor must make the contracted services effectively available to the coworker in working order, guarantee free access and permanence in the coworker’s facilities, carrying out all operations that ensure the suitability of the rented space or services, such as carrying out the relevant repairs, or replacing, where appropriate, damaged elements, etc.

For their part, the coworker or tenant must pay the agreed price, as well as use the rented space and services diligently. Otherwise, the coworker is responsible for any improper use or damage that may be caused negligently to the space or to the elements in it.

Likewise, the coworker must inform the landlord of any incident that prevents the provision of the service and allow any necessary repairs to maintain the peaceful use of his/her position.

CHAPTER III – TOURIST RENT

The classification of a lease as touristic excludes the application of the LAU. It is the autonomous communities that regulate the so-called tourist dwellings, making use of their own definitions and terminology. The Civil Code operates as a supplementary rule in the aspects not covered by the autonomous regulations, and is directly applicable in those communities that do not have it.

For the purposes of excluding them from its scope of application, the LAU defines, in general terms, what is to be considered a dwelling for tourist use ( LAU art.5.e ):

– the one that is transferred in its entirety on a temporary basis;

– furnished and equipped in conditions for immediate use ;

– for profit-making purposes ; and

– under the conditions established in its own sector regulations .

Furthermore, as an essential and defining characteristic of this type of rental, it is necessary that the property be marketed or promoted through a tourist channel or in any other way.

Clarifications

1) Since 6-3-2019 , the characterization of a lease as a tourist home is no longer based on the fact that it is marketed in a tourist supply channel, but rather, by expanding the objective scope , there is a referral to the specific regime that is applicable based on the autonomous sector regulations, regardless of the way in which said rental is promoted. However, the exclusion from the application of the LAU is maintained, once it is determined by this means that it is a tourist housing lease.

2) Traditionally, these homes were rented under lease contracts for non-residential use, specifically seasonal , and were included in the scope of application of the LAU until 6-6-2013, when they were excluded.

3) The National Commission on Markets and Competition has issued several rulings on issues related to tourist rentals, since the regulation of this activity must respect the freedom of enterprise of the Constitution art . 38. Likewise, the CNMC warns about the regulatory disparity and the excessive regulation, both regional and local, of this type of accommodation (E/CNMC/003/18).

Last update(Actum 4/24, April 2024)

Obligation to provide information on the activity of tourist accommodation and short-term rentals

(Actum 4/24, April 2024)

The European Union has approved the Regulation on the collection and exchange of data relating to short-term rental services.

 Rgto EU/2024/1028, OJEU 29-4-24

The Regulation on the collection and exchange of data relating to short-term accommodation rental services has been approved in the European Union and is applicable to all its member states, coming into force on 20-5-2026 .

This standard aims to facilitate the collection of reliable information on these services in terms of the identity of the host, the place where these services are offered and their duration, allowing the Administration to evaluate the real impact of these services and develop appropriate policies in view of the impact they are having on the housing market, mainly the decrease in the number of homes intended for long-term rental and the increase in rental and housing prices.

This rule applies to services consisting of the short-term rental of furnished accommodation, for remuneration, whether on a professional or non-professional basis, according to the particular approach of each Member State – for example, renting a room in a host’s main or secondary residence, an entire dwelling on land or water for a limited number of days per year, or one or more properties acquired by a host as an investment to be rented out for short periods, usually less than 12 months, throughout the year.

In this regard, it must be taken into account, on the one hand, that the offer of furnished accommodation for more permanent use, normally for a year or more, should not be considered a form of short-term rental and, on the other hand, that short-term accommodation rental services should not be limited to units rented for tourism or leisure purposes, but should include short stays for other purposes, such as business or studies.

Specifically, the Regulation governs the following aspects of leasing activity:

• Registration procedures.
• Information to be submitted by hosts.
• Verification by the competent authorities.
• Online rental platforms:

– compliance from the design of its online interface and other obligations;

– and the obligation to transmit activity data and registration numbers;

• Establishment and functionality of digital single windows and their coordination.
• Access to data.
• Information, supervision and execution.

Rgto EU/2024/1028, OJEU 29-4-24

Below is a comparative table that includes the current legislation of each autonomous community and the terminology used for this area in each of them.

Regulations by regions

Related figures

There are many tourist or holiday products that are similar to the rental of homes for tourist purposes. On the other hand, there are modalities regulated in some autonomous regulations that in other autonomous communities could be classified as homes for tourist purposes (nº 4091 ). Below are some examples of these related figures.

Tourist apartment

Tourist accommodation is different from tourist apartments in that the former refers to a residential property owned by a private individual who rents it intermittently and not professionally, while a tourist apartment is a type of non-hotel accommodation in non-residential properties, which form part of a tourist operation.

Lodging 

The accommodation contract usually covers rooms in a hotel or non-hotel tourist establishment.

It is a contract that combines the lease of a property – in reference to the room -, the supply of services – sanitary, water, electricity -, the lease of services – in relation to the services provided – and the deposit contract in relation to the effects or goods that are introduced ( TS 20-6-95, EDJ 3618 ; AP Madrid 26-10-18, EDJ 642686 ; 30-11-04, EDJ 231755 ).

This contract regulates the relationship between the entity or person that provides accommodation services and the client who seeks the provision of services on a purely temporary and transitory basis , without any intention of establishing the accommodation as his or her habitual residence.

This is a contract not regulated by civil regulations, therefore subject to what the parties may agree to in it ( CC art.1255 ).

Its duration is limited in time by its very nature. Lodging does not allow for unlimited perpetuation in time of use in favor of the guest ( TS 20-6-95, EDJ 3618 ).

The client with an accepted reservation or once he has been admitted to the establishment, has the right to remain in the use and enjoyment of the room for the time agreed in the contract. The duration of the stay may be extended or modified if there is an agreement to this effect.

Timeshare use of tourist goods

(L 4/2012 art.2 and 3)

The transfer of housing accommodation for tourist purposes is not a timeshare or a timeshare right of use contract.

The contract for the time-share use of tourist goods has a duration of more than one year and, by virtue of it, a consumer acquires for a fee the right to use one or more accommodations for overnight stays during more than one period of occupation.

Apartment with hotel services 

An apartment with extra-hotel services is one that is offered for both short- and long-term accommodation periods , providing clients with services typical of a hotel facility, such as reception, room cleaning or food service, as well as access to common services and facilities.

The characteristic of this apartment is that it combines the services available in hotel accommodation units with those of residential apartments, which are usually larger and have their own facilities such as a kitchen, laundry room or living room.

Contract for transfer of use

Tourist rental contracts for housing are usually drawn up through a specific contract for the transfer of use. This contract basically governs the relationship between the owner of the property and the user or guest of the property.

Each party has different legal and contractual obligations and, therefore, their liability regime is also different. 

Parts 

The different parties involved in the marketing and contracting of the transfer of use of homes for tourist purposes are analysed below.

Owner or manager of the property 

The owner of the property registered as a tourist residence. Other people may have rights over the property that give them the right to use it, such as a usufructuary.

The owner or usufructuary of a home is not necessarily the manager of the same, but may transfer the use of the home to another person or entity so that they can in turn transfer it to third parties for accommodation.

The manager is the person who operates the property and also:

• Orders the means for the provision of accommodation services in housing for tourist purposes.
• Offers and provides the accommodation service, contracting with clients and authorizing them to access the home and stay there under the agreed conditions.

The manager must have a title that enables him to transfer the property to the users. To the extent that said transfer of use to the operator is not made by the owner, but by another person, it is important to analyze whether the title by which the non-owner transferor transfers it to the operator allows said transfer.

In addition to contracting marketing channels, the owner or operator of a tourist accommodation often chooses to outsource all or part of the tourist services they offer to clients, so that they are provided by third parties. Among the services most often contracted are security, laundry, cleaning and maintenance of the accommodation.

Clarifications

The declaration of responsibility must indicate that the operation or management is carried out by an operator or manager, who has a legal title to do so. In the event that the name of an operator is not communicated to the competent Administration, it is presumed that the owner of the property is also the one who operates it , being responsible before the Administration and the users for the correct provision of the service, even if in practice they do not do so.

User, guest or tourist 

The user is the person who enjoys the accommodation service and, therefore, is always a natural person . He or she is obliged to pay the amounts accrued due to the use of the property for tourist purposes.

It may be the case that the contract is made by a third party , in which case there would be a subjective distinction between the contractor and the beneficiary of the service.

Booking accommodation 

The contract for the reservation of accommodation in a dwelling for tourist purposes is the contract by which the marketer or operator undertakes to accommodate a user in a dwelling for a certain period, in exchange for a monetary deposit, as a guarantee of the user’s commitment to use said accommodation and pay the agreed price for it.

preparatory contract for the contract for transfer of use, such that any amount paid for the reservation is normally applied to the total price of the stay.

The parties involved in this contract are usually the service provider and the client, although it is also very normal for the reservation to be agreed between the marketer and the client.

There are types of reservation contracts in which the marketer or intermediary signs the reservation contract, stating that he or she does so on behalf of the service provider.

Appointment through website 

Conceptually, the accommodation reservation arranged with the owner of a property that operates through a website has no legal difference with the reservation contracts analyzed, without prejudice to the fact that the contract is electronic.

However, users who access online platforms do sign a contract directly with said platforms that is not an accommodation reservation contract.

The most well-known platforms offer their services according to general contracting conditions agreed directly between them and the users who visit the website, which clearly state that the services provided by the online platforms consist of the creation of:

– meeting spaces where users can obtain information and consult advertisements for real estate properties offered for rent; or

– online marketplaces that allow accommodation or event service providers to publish such services and registered users to access them, and that direct communication can be established between the two to manage reservations.

Rights and obligations 

The rights and obligations of the parties depend on the provisions of the transfer contract , as well as on the applicable regional administrative regulations. Among the rights and obligations that can be identified as the most common, the following are worth highlighting:

Rights 

The owner or manager has the following rights:

– as a primary right, to receive the agreed price for accommodation;

– Other rights include: prohibiting access to the property to clients who do not pay for accommodation or intend to stay beyond the agreed time and removing luggage from the property when the client breaches their contract or does not leave the property within the agreed time.

For its part, the user of the home has the following rights:

– as a primary right, to enjoy the dwelling for the purposes of serving as temporary accommodation as well as the common areas of the establishment where the dwelling is located, if applicable;

– Another right is access to the services that the housing operator may offer, which may be subject to payment of a price. 

Obligations 

Among the obligations of the owner or manager we can distinguish:

primary obligation which is the temporary transfer of furnished and equipped accommodation in conditions for immediate use.

• Other accessory obligations , which are:

– provide the contracted additional services, such as catering on a breakfast-only, half-board or full-board basis;

– provide information relating to any regulations applicable to the service;

– compensate for any damages suffered by the guest or his/her property if there is fault or negligence; and,

– safeguard money and valuables as a depositary, provided that the service is offered or safes are provided for this purpose.

Clarifications

The regional tourism regulations regulate in detail the additional tourist services that the concessionaires have to offer. Thus, for example, the person marketing tourist stays in residential homes has to guarantee the periodic cleaning of the home, before the arrival of new clients or during their stay or the supply of bed linen, linen, etc. ( Balearic Law 8/2012 art.51 ).

user ‘s main obligation is to pay the agreed price for the temporary use of the property as well as any supplements or additional services.

Other obligations include :

– provide the property operator with his or her name and the names of the persons staying with him or her in the property;

– provide their identity documents, the number of people who can access the accommodation being restricted to the number of people hired, which in turn cannot exceed the number of accommodation places;

– respect the rules of operation and coexistence of the home;

– keep the accommodation unit in good condition without damaging the elements in it;

– leave the property within the agreed period. 

Breach of contract 

Failure to comply with the conditions of the contract for the transfer of use of a dwelling for tourist purposes by any of the parties determines the birth of the obligation to compensate the complying party for any damages caused.

Non-compliance gives rise to contractual liability with the obligation to repair the damage caused ( CC art.1101 ).

Possible user breaches are as follows:

– non-payment of the price;

– lack of diligence in the conservation and maintenance of the dwelling, its furnishings and facilities;

– non-compliance with the rules of coexistence of the building where the tourist accommodation is located; and

– lack of identification.

Failure to comply with the payment obligation , if it occurs prior to entry, as is usual, or refusal to identify oneself, entitles the transferor to deny entry and possibly to retain any deposit, depending on the terms that have been agreed.

The lack of diligence in the conservation and maintenance of the home generates in favor of the transferor the right to be able to claim for damages suffered by the user.

But where the potential breaches that generate liability are accentuated is from the perspective of the transferor , who must respect the contractual obligations, many of which are legally imposed by sector regulations. In these cases, the user can claim for the damages caused, as well as lodge the corresponding complaints with the consumer and tourism authorities.

Clarifications

There are several regional regulations that require operators and entities that market housing accommodation for tourist purposes to take out insurance . to cover civil liability for bodily injury or property damage that may be suffered by users of the homes during their stays there, as well as, in the case of homes subject to the horizontal property regime, to cover any damage that users may eventually cause to the community of owners. 

Causes for resolution 

There may be a number of reasons that allow the parties to terminate the contract, which may or may not be justified.

Among the cases of non-compliance by the property transferor that would be unjustified, the following can be noted:

• Overcrowding means having booked more accommodation than is possible, a behaviour that would lead to the impossibility of transferring the use of the property.
• Another unjustified cause for non-compliance is the transfer of accommodation under conditions other than those agreed or legally required, and may even include the transfer of accommodation other than that contracted.
• Once the contract has been signed and the user has entered the property, the property must be available for the agreed period of time; it is not possible to interrupt the provision of the service.

The civil consequences of such breaches entail liability for any damages caused to users.

Justified non-compliances 

Among the cases of non-compliance that would be justified, the following can be noted:

• Force majeure , referring to the transferor or the client. This situation exonerates the non-performing party, and ultimately the party that has complied, from its contractual obligations since compliance is impossible ( CC art.1105 ).

However, the occurrence of force majeure may occur when the transfer has already begun, in which case the transferor has the right to receive the price up to the moment of force majeure.

• The death of the transferor due to the characteristics of the transfer of the property may be a justified cause for non-compliance if this implies a closure of the provision of services, unless it is a company. The death of the client , due to the characteristics of the contract for the transfer of the property, is a justified cause for non-compliance.
• The execution of necessary works is a justified cause for termination if they are unforeseen and are a result of force majeure. Otherwise, the transferor must be liable to the user for not providing accommodation.
• If the client suffers an accident or illness that prevents him from using the accommodation, the cause is justified, but if he does not cancel the reservation when he could have done so, with the advance notice that the parties had agreed, the transferor can take the advance payment.

Marketing

The marketing company or intermediary is the natural or legal person that promotes the sale of stays in homes for tourist purposes, by making the necessary marketing means available to managers or owners and managing reservations. It does not provide accommodation services as such, but rather promotes and sells them.

The regulations do not clearly distinguish between the different forms of marketing and promotion or intermediation through the various channels of tourist offering, as well as the concept in which it is carried out. The existing regulations use different terminology and even concepts.

Marketing agent

There are different ways of marketing and promoting homes for tourist purposes.

Online marketing platform 

Online platforms promote the marketing of stays in homes for tourist purposes via the Internet with the aim of creating a meeting point between those offering and those seeking such services.

They are configured as intermediaries with the clear purpose of acting as a service provider through telecommunications networks and electronic contracting .

The main forms of online marketing establish in their terms of service to the owners or operators of the dwellings that these companies provide a service of mere advertising platform. They facilitate communication between housing assignors and assignees, but they are not providers of accommodation services; therefore, the responsibility for compliance with the sectorial regulations falls on the owners or operators of the dwellings.

Online platforms are currently not regulated, except for the intention of tourism regulations to consider them marketing companies or channels of tourist offering and thus require them to register in the respective tourism registers of each autonomous community.

The platform usually provides additional services to suppliers and applicants, such as:

– control and quality of the products offered;

– collection and payment services for reservations and stays;

– procedures for liberalising payments to bidders;

– customer service in case of irregularities and even insurance.

For all services provided by the platform, it charges a commission that is a percentage of the amount of each reservation. Various commissions are usually charged, a commission of between 3% and 5% to the owner or operator, and a commission of between 6% and 20% to the client. The collection sequence implies that the platform charges 100% of the amount to the applicant for a stay in a home for tourist purposes and pays this price less the commission to the operator of the home, with the platform itself normally issuing a receipt in favor of the client.

In many cases, platforms also collect and settle local taxes linked to tourist stays.

The platforms also offer, among their services, the arrangement of insurance to cover the risks of temporary transfer, the beneficiary of which would be the owner or operator; this insurance can cover risks such as theft, vandalism, damage due to serious negligence, but it does not usually cover civil liability, or theft of money, jewelry or works of art or items of a certain value, nor minor damage.

Clarifications

The Administration cannot force a platform, which acts as a mere intermediary for tourist rentals , to monitor compliance with the administrative requirements by its users.

The platform only acts as a technological platform with a neutral position , as it is limited to publishing advertisements for its users, with them being the ones who determine the information and content of the same.

Nor can it be considered a tourist company , since not all accommodations are for holiday use; nor does it have the obligation to determine which accommodations are considered tourist accommodation, nor does it have the means to do so, nor can it be held responsible for any possible non-compliance by third parties.

Its activity is that of intermediation , typical of the information society, and is regulated by Directive 2000/31/EU and Law 34/2002 , both of which regulate information society services and electronic commerce, and not by the sectoral legislation on tourist accommodation.

Furthermore, the fact that it not only publishes advertisements for tourist accommodation, but also others that would not be subject to this obligation, and the nature of the intermediation services, whose services are merely accessory to the underlying activity, prevent the omission of certain administrative requirements by advertisers from being considered a flagrant illegality that forces the platform to withdraw their advertisements ( TS 30-12-20, EDJ 767228 ).

Platforms usually have terms, conditions and policies that offerers and applicants must agree to accept and respect, so that it is these platforms that determine the contractual content of the transfer of use of the rooms.

assignments to clients, online platforms often include concepts such as:

– deposit or guarantee in favor of the owner, to cover minor damages – the amount is usually established by the owner;

– cancellation options for the guest;

– penalty for the owner if he cancels;

– discounts and promotions, such as the existence of credits for recommending clients or users or for using the service for the first time; and

– commissions for the cleaning service of the property once it has been used.

Despite the provision of all these services, the entities that manage these platforms understand that their main service is the platform software that allows operators to offer and customers to search and find the accommodations that best fit their needs.

Regarding the responsibility of marketing companies:

– when promoting on behalf of third parties they play a role similar to retail travel agencies with respect to hotel accommodation; and

– If they act on their own behalf, they operate in a similar way to wholesale travel agencies. The reality, however, is that marketing companies that promote on their own behalf are liable to clients for failure to provide accommodation, since they themselves operate and exploit the properties they market.

Clarifications

The regulations on travel agencies and package tours provide that both the wholesale organiser and the retail travel agency with which the contract is entered into are responsible for the correct fulfilment of the obligations arising from the package tour contract, regardless of whether they or the various service providers – hoteliers, transporters, etc. – must execute them ( LGDCU art.161 ).

Property manager for tourist purposes 

The managers directly market and provide accommodation services in homes for tourist purposes, not necessarily their own, but with a title that enables them to operate the accommodation.

These are companies that operate these properties and offer accommodation services to clients. The main difference with platforms is that these managers are not intermediaries, but rather directly provide tourist services to clients.

However, managers can operate their own websites and applications, as well as use platforms as a means of advertising their activity.

Managers do not charge a commission , but rather receive a fee for the provision of services.

There are operators that combine the offer of accommodation in homes for tourist purposes operated directly by them, with the offer of accommodation operated by third parties, in such a way that through their systems and websites both types of accommodation can be accessed. Thus, their activity would include that of pure online platforms together with that of operators.

Auxiliary company of the online platform 

The main online platforms operating in Spain are established in other countries of the European Union, considering that all management of these services is carried out by personnel and servers located there.

These companies carry out activities auxiliary to the activity of the company that acts as an online platform .

These auxiliary activities can be very diverse and depend on each company, but they range from the promotion and marketing of the services of the platforms and the hiring of hosts of homes for tourist purposes for the inclusion of their accommodation offer on the platforms, including the activity of support to said hosts, to the provision of services that could be linked to the accommodation activity – key management, supervision of the quality of the homes, incidents that clients staying in them have, etc.

Other marketers 

The regional tourism regulations define tourist offer channels as any system through which natural or legal persons, directly or through third parties, market, advertise or facilitate, through links or content hosting, the reservation of tourist stays in homes for tourist purposes.

This definition includes many entities that can also market stays in homes for tourist purposes. These include, among others, travel agencies, reservation centres, mediation companies or organisations of tourist services, real estate agencies; as well as the insertion of advertising in social media, whatever its type or medium.

Contracts

The contracts that can be made between the owner of the property and the intermediaries in a transfer of use are those set out below.

Marketing 

The contract for the marketing of housing for tourist purposes is configured as a contract of services and mandate in which the provider of accommodation services entrusts a third party with the promotion of said services.

In addition to the creation of advertisements and offers on online platforms , the marketing of accommodations is often contracted out. Intermediaries, for a commission, are responsible for promoting accommodations using their own means in order to sell them, and their role is limited to acting as agents or intermediaries, with the accommodation contract being agreed between the owner or operator and the end user.

Marketing may be on an exclusive or non-exclusive basis .

The role of marketer can be assumed by a variety of subjects, such as real estate agencies, wholesale or retail travel agencies, property agents, commission agents, telemarketing service providers, etc.

Management 

The owners are not always the operators of the properties, but rather they cede the use of the same to third parties for them to operate. These cessions of use can take three main variants :

• Assignment for a specific period, with the manager assuming the obligation to pay a fixed rent to the owner during said period, such that the entire risk of the activity is assumed by the manager.
• Transfer of use of the property for a specific period, with the manager assuming the obligation to pay a variable rentor a combination of fixed and variable income to the owner, such that the risk of the activity is shared.
• Management by the operator on behalf of and for the account of the owner, in such a way that the latter assumes the risk of the activity , although the management of the property and its marketing is carried out by the manager.

The terms of the contract and the obligations of the parties depend significantly on the contractual scheme chosen:

– In the first two cases, we are normally dealing with contracts that can be reconciled to the form of a property lease contract;

– In the third case, we are dealing with a service provision contract with a mandate component, in which the owner must entrust the manager with carrying out the commercial acts necessary for the operation of the property, but with the owner assuming the risk and venture of the operation, agreeing on fees for the management in favor of the manager.

Advertising on online platforms 

Owners or operators often enter into contracts with online platforms in order to advertise their accommodation offers.

Owners or managers who manage a certain number of properties often develop websites where they offer accommodation in those properties. It is very common, however, for both individual owners or managers who offer accommodation in a large number of properties to turn to online platforms in order to advertise their accommodation on these platforms.

online platforms have standard contracting conditions .

Regional regulation of the activity

Following the exclusion of tourist accommodation dwellings from the LAU, most autonomous communities have approved their own tourism regulations to regulate the rental of these dwellings.

The communities that have regulated the matter have established different definitions and exclusions of housing for tourist purposes, requirements and services necessary to carry out this activity. This determines an evident diversity and inequality between some communities and others.

The regulations governing tourist accommodation in each autonomous community are analysed below.

1. Andalusia

(L Andalusia 13/2011 ; D Andalusia 28/2016 redacc D Andalusia 31/2024 )

Tourist housing is considered a tourist accommodation service , in accordance with the provisions of Andalusian Law 13/2011 .

In addition to its regulation, it deals with the formalization of the contract and access to housing, and the procedure for starting the activity.

Tourist housing

(D Andalucía 28/2016 art.3.1 draft D Andalucía 31/2024)

These are homes equipped for immediate use, located in buildings where accommodation services will be offered for a fee within the Autonomous Community of Andalusia, on a regular basis and for tourist purposes.

The tourist service must be provided throughout the year or during specific periods within the same year, and this must be stated in the responsible declaration. It can only be marketed during the periods indicated, and marketing outside of these periods is considered clandestine activity.

It is presumed that there is habitual use and tourist purpose when the property is marketed or promoted on tourist offer channels.

Travel agencies, companies that provide or organize tourist services, and channels that include the possibility of booking accommodation are considered tourist offering channels .

The provision of the service involves the effective offering of housing in tourist supply channels during the declared periods.

Companies operating tourist accommodation

(D Andalucía 28/2016 art.3.2 draft D Andalucía 31/2024)

These are natural or legal persons who are assignees of the administration and management of one or more tourist-use homes, regardless of the enabling title to do so, and must appear as owners of the operation in the responsible declaration.

Administration and management of the accommodation is presumed when the main services inherent to the accommodation are carried out and, in particular, when the tasks of handing over keys, receiving guests, attention during the stay, conservation and maintenance of the facilities and belongings of the accommodation unit, cleaning upon entry and exit or billing are carried out.

Administration and management correspond to a single owner when complementary services are offered whose provision is carried out by companies other than the entity that operates the service, and the user must be informed of this circumstance.

information must be made available to users with a list of these services and the identification of the service providers, without prejudice to the liability of the operating company.

In cases of separation between ownership and exploitation and when the ownership of the property is under a co-ownership, community or similar regime, the operating company must obtain from all the owners the legal title valid in law that enables exploitation.

Classification

(D Andalucía 28/2016 art.5 draft D Andalucía 31/2024)

Tourist housing is classified into two groups:

a) Full , when the accommodation is rented in its entirety, but may not exceed 15 places. In this category, two convertible places are allowed in the living room of the apartments in the full group, which will count towards the maximum capacity of the apartment.

b) By rooms , when the property is not entirely leased, and the natural person who owns the property or the natural person who owns or has usufruct of the property must reside there. In these cases, the person residing there must be registered in the property. The number of places cannot exceed 6, nor, in both types, 4 places per room, of which two must be in beds that are not bunk beds.

Requirements

(D Andalucía 28/2016 art.6.1 draft D Andalucía 31/2024)

Tourist housing must meet the following substantive and habitability requirements:

1. Comply with municipal urban planning regulations .

The registration of the property in the Andalusian Tourism Registry must be communicated immediately by the Tourism Administration to the corresponding town councils.

b) Have a minimum constructed dimension of 14 m² per space, in accordance with the constructed surface area for main use that appears in the Electronic Headquarters of the Cadastre.

In any case, the minimum constructed area for main use will be 25 m² or , failing that, the amount determined by urban planning.

c) Provide two bathrooms if the number of places is greater than five, and three bathrooms if the number of places is greater than eight.

d) Bedrooms and living rooms will have direct ventilation to the outside or to ventilated patios and some window darkening system.

This requirement will not be enforceable when the local or regional administration, for reasons of competence, exempts compliance for reasons of architectural protection.

Kitchens and bathrooms will have direct or forced ventilation for air renewal.

e) Have centralized or non-centralized cooling by fixed or portable elements in the rooms and lounges, when the operating period includes the months of May, June, July and August.

f) Have centralized or non-centralized heating by fixed or portable elements in the rooms and lounges, if the period of operation includes the months of December, January, February and March, without incandescent elements or combustion of flammable liquids or gases being admissible under any circumstances.

g) Others provided for in the annex of the current regulations.

last update

Andalusia. Cave-type tourist dwellings

(Actum 7/24, July 2024)

Requirements for tourist accommodation with caves in Andalusia are modified.

 D Andalucía 28/2016 art.6.1.e redacc DL Andalucía 7/2024, BOJA 6-28-24

With effect from 29-6-2024 , in Andalusia, tourist homes that are cave-type constructions are exempt from complying with the requirement of having centralized or non-centralized cooling by fixed or portable elements when the operating period includes the months of May, June, July and August.

D Andalucía 28/2016 art.6.1.e redacc DL Andalucía 7/2024, BOJA 6-28-24

Obligations for  owners

(D Andalucía 28/2016 art.6.2 draft D Andalucía 31/2024)

The following are listed:

1. a) Provide users with a 24-hour telephone number to immediately answer and resolve any queries or incidents relating to the home.
2. b) Clean the home when new users move in and out.

1. c) Make official complaints and claims forms from the Andalusian Government available to users.

1. d) Informing users of the rules of coexistence of the community of owners and use of facilities. An evacuation plan must be posted on the door of the home, if there is one for the community of neighbors of the building.

1. e) Provide proof of payment for services and advances made.

1. f) Inform users if they are affiliated with the Consumer Arbitration System .

Formalization of the contract and access to housing

(D Andalucía 28/2016 art.7 draft D Andalucía 31/2024)

Every user must be given a document in the form of a contract at the time of receipt, which must contain at least:

– the name of the person or entity operating the dwelling;

– the alphanumeric code of registration in the Tourism Registry of Andalusia;

– the number of people who will occupy it;

– the dates of entry and exit; and

– the total price of the stay.

In order to use the property, the user must present his or her identification document in order to complete the corresponding entry form.

The copy of the documentation, once completed and signed by the user, must be kept by the person or entity operating the service and made available to the competent bodies of the Administration of the Andalusian Government for one year, having the value of proof for administrative purposes and being considered a contract.

The user of the property has the right to occupy it from 3 p.m. on the first day of the contracted period until 11 a.m. on the day indicated as the departure date, although a different regime may be agreed individually.

In the event that the operator is not at the property at the time of arrival or departure of the clients, the delivery of the keys must be arranged in advance .

At the time of delivery of the home, the user must be informed about the rules for the use of the common elements and facilities of the block or development, as well as about the operation of the electrical appliances and other instruments that require it, and will be given the keys, cards and passes that allow access and use of said facilities.

Procedure for starting the activity

(D Andalucía 28/2016 art.9 draft D Andalucía 31/2024)

In order for a person or entity to exploit this service, the following procedure must be followed:

• Submit an electronic declaration of responsibility to the competent tourism authority, and from this moment on, the property may be advertised as a tourist accommodation.

Without prejudice to what may be required under Community regulations, the declaration of responsibility must contain, as a minimum, the following information :

a) Data corresponding to the identification of the dwelling , including its cadastral reference, and its maximum accommodation capacity.

Only one dwelling is allowed for each cadastral reference , except in cases where, in accordance with current regulations, the existence of two or more dwellings with the same cadastral reference can be proven.

b) Identification of the operating person or entity and the title that enables it, including telephone number and email address for the purposes of notifications of availability of electronic notifications.

c) Identification of the owner or holder of the property, if different from the person or operating entity.

d) Declaration that the dwelling is not subject to any public protection regime or that it is disqualified.

e) Declaration that the dwelling is compatible for use as a tourist dwelling in accordance with the applicable urban planning or regulation.

f) Express authorization for the transfer and exchange of data by public administrations, for the necessary purposes of exercising their respective powers, including security forces and tax authorities.

g) Declaration that the dwelling is not prohibited from being used as a tourist dwelling , in accordance with the constitutive title or statutes of the community of owners.

h) Period or periods of provision of the tourist service.

• The verification by the Tourism Administration of the inaccuracy or falsity of an essential nature in any data, statement or document incorporated in the responsible declaration, as well as the non-existence of required licenses or authorizations, will give rise to the cancellation of the registration of the property in the Tourism Registry of Andalusia, after hearing the interested parties.

2. Aragon

(D Aragon 1/2023 )

In Aragon, homes for tourist purposes are called homes for tourist use.

In addition to its regulation, this section deals with the procedure for starting the activity.

Tourist housing

(D Aragon 1/2023 art.2 to 4 and 9)

These are properties subject to the horizontal property regime , isolated single-family homes or others belonging to private real estate complexes that are temporarily transferred by their owners, directly or indirectly, to third parties for tourist accommodation, furnished and equipped in conditions for immediate use, marketed or promoted in tourist supply channels and for profit.

Holiday homes must be leased in their entirety and may not be leased for individual stays.

The transfer of use of a dwelling is presumed to be subject to the Regulation when its promotion or marketing is carried out through tourist supply channels, or when it is transferred for a period equal to or less than one month per user.

Tourist offering channels include travel agencies; reservation centres; other companies that mediate and organise tourist services, including virtual intermediation channels; as well as the insertion of advertising in social media spaces related to travel and stays in places other than the usual environment of tourists.

The maximum accommodation capacity of these homes is as follows:

– 1 person per room > 6 m2 ;

– 2 people per room > 10 m 2 ;

– 3 people per room > 14 m 2 .

The studios will have a maximum capacity of two places.

Both the bedrooms and the living-dining room in tourist homes will be considered rooms .

The transfer must be made of the entire home , transfer by rooms is prohibited.

are excluded from the regime for tourist housing:

– rural houses and blocks or groups of flats, houses, villas, chalets or similar that offer, in a professional and regular manner, for a fee, tourist accommodation, which will be governed by the provisions of their specific regulations;

– complexes consisting of two or more dwellings belonging to the same owner or operated by the same manager that are located in the same building, which must comply with the provisions of the regulations governing tourist apartments; and

– the leases of urban properties contemplated in the LAU.

Clarifications

Please note that users of assistance dogs will have the right to free access, movement and permanence in tourist establishments in their company under the terms provided for in their regulatory regulations ( DLeg Aragón 1/2016 art.31.3 redacc L Aragón 14/2023).

Requirements

(D Aragon 1/2023 art.8 to 14)

Tourist accommodation must meet the following requirements:

1. a) They must be delivered in proper conditions of cleanliness and hygiene , with all furniture, cutlery, household items, linens and equipment inherent to them.

hot and cold water must be guaranteed with correct water circulation.

1. c) Tourists must be provided with a telephone number to immediately answer and resolve queries and incidents regarding the use of the homes, as well as guaranteeing an urgent assistance and maintenance service for the homes.

1. d) Prices for tourist accommodation are free and must be expressed in their maximum amounts, including taxes, as well as applicable discounts and any supplements or increases. These must be communicated or displayed to the public in a visible and legible place in the accommodation itself and in the advertising relating to it.

1. e) The dwellings must be identified by placing a pictogram with the initials “VUT” on the outside of them.

1. f) The signature number corresponding to the registration of the tourist accommodation in the Tourism Registry of Aragon must appear in all its advertising and, in particular, in promotional and marketing actions through tourist offer channels.

Procedure for starting and carrying out the activity

(D Aragon 1/2023 art.15)

Prior to the opening, modification or substantial reform of a tourist dwelling, the owner of the dwelling or his representative must make a responsible declaration addressed to the competent body of the department in matters of tourism.

• The responsible declaration must contain, as a minimum, the following information and documentation :

1. a) Data on the home and its maximum legal capacity .

1. b) Data of the owner and, where applicable, of the manager.

1. c) Telephone number to immediately respond to communications related to the tourist housing activity.

1. d) Responsible declaration of compliance with current regulations regarding habitability and safety for residential use as housing, as well as regarding potability and water purification and waste disposal.

1. e) Responsible declaration regarding the compatibility of the use with the urban planning of the municipality or, where appropriate, the provision of the municipal authorisations that are necessary for the exercise of the activity in the property in question.

1. f) In the case of homes located in buildings subject to the horizontal property regime, a responsible declaration that the statutes of the community of owners do not limit or condition the use of the home, preventing the exercise of tourist activity.

• After the responsible declaration has been formulated, the competent body of the department responsible for tourism will request a mandatory and binding report from the corresponding city council, with a deadline of 10 days, regarding the following aspects:

1. a) If the tourist accommodation is of a residential nature and complies with municipal building regulations.

1. b) If the proposed tourist accommodation activity is in accordance with the urban use provided for by municipal regulations and complies with the specific conditions that, where applicable, are applicable.

1. c) Whether the proposed tourist accommodation activity complies with the applicable land use planning guidelines .

• Once the responsible declaration has been made , and within a period of no more than 3 months, the corresponding competent body will proceed, as appropriate, to:

1. a) Register the declared act or fact in the Tourism Registry of Aragon for purely informative purposes.
2. b) Prohibit tourist use of the property in the event of non-compliance with the requirements of the applicable regulations, without any right to compensation being derived from this.
3. c) State the conditions under which the establishment’s activity could take place, and its corresponding registration.

• After a period of 3 months has elapsed without having carried out the actions included in letters b) or c) of the previous paragraph, the declared act or fact will be registered in the Tourism Registry of Aragon for purely informative purposes.

• Registration acts may be modified or revoked after hearing the interested party and with due motivation, when the circumstances that gave rise to them are breached or disappear or other circumstances arise that, if they had existed, would have justified their denial or, where appropriate, opposition. 

3. Asturias

(L Asturias 7/2001 ; D Asturias 48/2016 )

Types of housing

Within the tourist activity, two types of housing are regulated in Asturias: holiday homes and those for tourist use.

Holiday homes

(L Asturias 7/2001 art.42 ; D Asturias 48/2016 art.4 s.)

Holiday homes are those in which only the service of accommodation at a price, on a regular and professional basis for holiday purposes, without being classified as hotel establishments, tourist apartments, rural tourism accommodation or tourist hostels.

Accommodation in this type of housing must be complete, not by room. The capacity of the housing must be a maximum of 14 people, and may be distributed in a maximum of 7 rooms.

Holiday homes must have the following facilities and equipment: minimum ( D Asturias 48/2016 art.5 s. ):

– supply of hot and cold drinking water;

– guaranteed 24-hour electricity supply;

– effective wastewater disposal system;

– garbage collection service authorized by the City Council;

– heating;

– first aid kit;

– one fire extinguisher per floor;

– telephone for customer use;

– signposted access, the access road to the home must be accessible for all types of vehicles up to the immediate surroundings of the home.

characteristics of the rooms are also regulated ( D Asturias 48/2016 art.6 s. ):

– bedrooms: minimum area of 10 m2 for doubles, and 6 m2 for singles;

– toilets must have sufficient ventilation, direct or induced, and be equipped with a washbasin, bathtub or at least a shower tray, toilet, mirror, power socket, towel rack and shelf for toiletries;

– the living room may in no case be less than 8 m2 ;

– the kitchen must always have direct ventilation.

In addition, all holiday homes must display a standardised plaque next to the main entrance stating the signature assigned to it by the Administration.

Tourist housing

(D Asturias 48/2016 art.12 s.)

Tourist dwellings are independent dwellings located in a multi-storey building subject to a horizontal property regime that are temporarily transferred by their owner or person with an enabling title, directly or indirectly, to third parties for tourist or holiday use and in which only the accommodation service is provided for a fee, on a regular basis.

These properties must be promoted on tourist offer channels. They can be rented in full or by room, without the need for the owner of the property to reside there.

Requirements

(D Asturias 48/2016 art.13)

They must meet the following:

– have a certificate of habitability ;

– be sufficiently furnished and equipped with appliances and fixtures for immediate occupation;

– have a permanent and adequate supply of hot and cold water, as well as electricity and heating;

– have a fire extinguisher and emergency lighting;

– rooms must have direct ventilation to the outside or to uncovered patios;

– must have some kind of window darkening system ;

– there must be a number of bathrooms proportional to the number of users accommodated (at least one bathroom for every 6 places);

– the dwellings must comply with the requirements of the regulations governing the technical and quality conditions required for dwellings and in particular the habitability and safety conditions of the dwellings;

– must display a standardised plate next to the main entrance, with the “VUT” pictogram. 

Owner’s Obligations 

Holiday homes and tourist homes must comply with a series of rules common to both types:

• Obligations in advertising must include the signature that the tourist administration has assigned to the home ( D Asturias 48/2016 art.14.3 ).
• The operator of the holiday or tourist home, whether a natural person or legal entity, must have civil liability insurance that covers damages and injuries suffered by the clientele, with a minimum amount of coverage ( D Asturias 48/2016 art.26 ).
• It must be proven that the purpose of the holiday or tourist home is not prohibited ( D Asturias 48/2016 art.27.b ):

– by the urban planning of the area where it is located; or

– by the statutes of the community of owners duly registered in the Property Registry for those buildings subject to the horizontal property regime.

Procedure for starting the activity

(D Asturias 48/2016 art.29 to 31)

Owners or operating companies of holiday homes as well as those for tourist use must meet the following requirements:

• Submit the responsible declaration to the competent tourism administration, which authorizes the start of the activity at the same time of its submission. It must contain the following information :

– name and surname of the owner or company name and, where applicable, of the representative, or of the person in charge or manager;

– NIF or CIF of the applicant and the representative, if applicable, or, in the case of foreign persons, another official document proving their identity;

– trade name under which the activity will be carried out;

– date of commencement of activity as a tourist accommodation company;

– type of company involved;

– address of the company and establishment, telephone, fax, website, email;

– details of the holiday home and its maximum capacity;

– list of rooms, if it is a tourist accommodation, and their maximum capacity;

– telephone number to immediately respond to communications related to the housing activity;

– identification of the home assistance and maintenance company, if any;

– if the property is located in a building subject to a horizontal property regime, a declaration that the statutes of the community of owners do not prohibit such use or, if such a prohibition exists, a declaration of the existence of express written authorization from the community.

• The responsible declaration must be accompanied by the following documentation :

– documentation proving the legal personality of the person holding the farm;

– copy of the title proving the availability of the property;

– municipal license for first occupancy, as well as opening for the development of the activity of holiday housing, or housing for tourist use, which may be required by each municipality;

– interior floor plans indicating the purpose and surface area of each room;

– list of rooms, indicating surface area, capacity in beds, and services they are equipped with;

– copy of the contracted operating liability insurance policy and receipt proving payment;

– certificate of habitability;

– if there is a manager, the owner’s authorization or sufficient title to manage the property;

– in relation to tourist accommodation: in the event of a prohibition in the statutes of the community of owners, express written authorization from the community to carry out the activity.

• Once the responsible declaration has been submitted, the company must be registered in the Registry of Tourist Companies and Activities of the Principality of Asturias, informing the company of the corresponding signature that will identify the property.

4. Balearic Islands

(L Baleares 8/2012 art.49 to 52 ; DL Baleares 6/2023 3rd additional provision )

Types of housing

In the Balearic Islands, tourist accommodation may be provided as tourist stays in homes or rentals of the main residence.

Tourist stays in homes

(Balearic Law 8/2012 art.49)

Tourist accommodations sell accommodation in residential homes, in their entirety, for days or weeks but for a maximum of one month, in conditions of immediate use and for profit.

This category includes stays in tourist accommodation:

• In single-family buildings . They can be marketed indefinitely, except if it is a single-family home that shares a plot with others or if it shares the building with premises intended for other uses (with more than one owner).

• In multi-family buildings . They can be marketed for a period of 5 years, renewable. After this period, the marketing can continue only if all the legally or regulatory requirements are met, including that the area continues to be suitable, for extendable periods of the same period.

Contracting by room is prohibited . Tourist stays in homes are incompatible with the formalization of contracts by room or with the coincidence in the same home of users who have formalized different contracts.

Rental of main residence

(Balearic Law 8/2012 art.50.20)

When marketed solely by natural persons who are the owners of the property, and marketed for a maximum period of 60 days in a one-year period, the marketing of tourist stays may be carried out under the modality of rental of a primary residence; and this regardless of the type of property, whether single-family or multi-family.

requirements are required :

– the marketing person must prove, when submitting the responsible declaration, that he/she is the owner of the property;

– the marketing period must be respected, which may not exceed 60 days per year;

– the responsible declaration can only be submitted if the property is located in an area expressly declared suitable;

– the responsible declaration authorizes the exercise of the activity for a period of 5 years, with the same regime and authorization and renewal requirements established for homes subject to the horizontal property regime;

– On an exceptional basis, cohabitation of residents in the home with users is permitted, provided that this is correctly indicated in the advertising for the homes;

– the owner cannot have more than 2 properties marketed for tourism in the other two types of holiday home stays.

Common requirements

(Balearic Law 8/2012 art.50 and 52)

The following are the common requirements that both types of housing must meet:

• Residential dwellings must have been used for private residential purposes for a minimum period of 5 years.

• The homes must have a valid certificate of habitability or a similar title of habitability issued for this purpose by the competent island administration.

• They must have at least one bathroom for every 4 places.

• This must be accredited by obtaining an energy certificate that must be approved. Failing this, the minimum qualifications are as follows:

– F rating for buildings built before 31-12-2007;

– D rating for buildings built after 1-1-2008.

• Individualized control systems for water and electricity consumption .

accessibility regulations .

• Prohibition of marketing of officially protected housing or housing at a fixed price and those located on protected rural land .

• Subscription of civil liability insurance to cover any bodily or material damage that may be suffered by the users of the dwellings during their stays there. When the dwelling is subject to the horizontal property regime, the insurance must also cover any damage that the users may cause to the community of owners.

Clarifications

1) Companies marketing tourist accommodation in homes are required to inform customers, expressly and in a recorded manner, of the prohibitions and sanctions established in DL Baleares 1/2020 art.3.2 and 11 s. in relation to ” excessive tourism “; as well as the obligation to immediately expel users who carry out the practices prohibited by this regulation ( DL Baleares 1/2020 art.3.1 ).

2) Properties marketed for tourist stays that have been sanctioned by a final resolution may not be subject to a change of ownership resolution as long as the existing debt with the sanctioning tourist administration has not been previously settled ( Balearic Law 8/2012 art.50.4 ).

3) As a provisional measure , the temporary closure of the establishment or the tourist accommodation may be decreed when it is considered necessary to ensure the effectiveness of the resolution, for reasons of urgency, or for provisional protection of the interests involved ( Balearic Law 8/2012 art.128.1.b redacc Balearic DL 6/2023 ).

Procedure for starting an activity

(Balearic Law 8/2012 art.23)

The following requirements must be met to start the activity:

Submit the responsible declaration of commencement of activity to the competent tourism authority, providing the following documentation:

– accreditation of personality;

– municipal certificate proving that the area is suitable and that the maximum number of spaces in the municipality has not been exceeded;

– certificate proving the acquisition of tourist places;

– only for rentals of primary residence: registration certificate of the owner; and

– only for homes subject to the horizontal property regime, documentation proving that tourist marketing is permitted in the community of owners.

The presentation of the responsible declaration has the immediate effect of registration in the corresponding island registry of companies, activities and tourist establishments.

Any inaccuracy, falsehood or omission in any essential data, statement or document attached to or incorporated into a responsible declaration of commencement of activity implies the cancellation of the registration and, therefore, the impossibility of continuing with the exercise of the affected activity, without prejudice to any legal liability that may have been incurred, with prior instruction of the corresponding procedure in which the interested party will be given a hearing.

If the tourist administration detects the inaccuracy, it may initiate disciplinary proceedings, without prejudice to imposing the restoration of the legal situation.

Conversion and change to residential use

(L Baleares 8/2012 art.78 redacc DL Baleares 6/2023)

The change of use to residential can be requested from the competent urban planning authority in tourist accommodation establishments or unbuilt plots for tourist use in the following cases:

– for reasons of incompatibility of tourist use with the area in which they are located;

– due to conditions or factual elements that justify the tourist and economic unviability, especially in the areas defined in the intervention plans in tourist areas;

– due to their notorious obsolescence when they are not located in tourist areas;

– because these are buildings in which there is a multi-family use not incorporated into the ordinance and the planning does not contemplate it; and

– because the buildings or plots of land are equally valued for the opportunity and suitability of this change.

The competent urban planning authority will process and resolve the administrative file , following a report from the tourism authority, in which the aforementioned conditions will be justified and the opportunity and suitability of the change of use will be appropriately assessed.

The change of use will be understood to refer to the entire plot , including its buildings and/or constructions.

The maximum density will be one dwelling for every 60 m² of building surface area intended for residential uses, and the proposal must provide for a minimum of 10% of the building to be used for uses other than residential, including the following: public, administrative, commercial, sports, educational or socio-cultural establishments. At a minimum, each of the dwellings resulting from the change of use must be equipped with a parking space on the affected plot or at most 200 metres away.

Exceptionally, by means of the processing of a specific and individual administrative file for each project , the competent urban planning authority may, after the prior report of the tourism administration, exempt compliance with the minimum size of authorised housing, by means of a reasoned resolution, and the aforementioned file will determine the minimum size of housing to be authorised, which must comply with the habitability regulations, the percentage of construction intended for other uses and the necessary parking spaces. When the change of use occurs on an unbuilt plot , the urban planning parameters that will be applied will be those of its urban planning classification at the time of the request for the change of use.

When the complete rehabilitation of a building in an unsuitable situation is not technically or economically viable, at the request of the owners, the demolition of the building may be agreed upon in order to rebuild it in accordance with the urban planning parameters of the building for which the change of use is taking place.

In all cases where a change of use is appropriate, the owner of the establishment must pay the competent municipal administration 5% of the budget for the material execution of the comprehensive rehabilitation or reconstruction of the building in which the change of use has been formalized. This transfer value will only be applied to the constructed surface corresponding to the new use. These revenues will be used for actions and investments in the area where the change of use has been made, after the prior and binding report of the competent tourist administration.

The documentation to be provided to the Tourist Administration must be sufficient to assess all the aspects necessary to adopt the resolution and must include, as a minimum, a statement of the background and urban situation, the graphic documents and the justification of compliance with the requirements set out in this article, as well as the solution presented. Likewise, the Tourist Administration must submit the proposed resolution to a public hearing for a minimum period of one month, so that suggestions or objections can be presented.

New housing resulting from the application of this provision will have the status of limited-price housing .

5. Canary Islands

(L Canary Islands 7/1995 ; D Canary Islands 113/2015 )

Holiday homes

(D Canary Islands 113/2015 art.2 and 12)

Holiday homes are those homes, furnished and equipped in conditions of immediate use and meeting the requirements demanded by the regulations, which are marketed or promoted in tourist offer channels, to be temporarily and entirely transferred to third parties, on a regular basis, for the purposes of holiday accommodation and in exchange for a price.

Habitual occupancy occurs when the home is transferred two or more times within a period of one year or once a year, but repeatedly; and temporary occupancy means the entire occupation of the home for a period of time, which does not imply a change of residence by the person.

Only homes subject to the horizontal property regime can be marketed when the statutes of the community of owners do not prohibit the activity ( Canary Islands Decree 113/2015 art.12.2 ).

Clarifications

The exclusion of the activity in buildings located in tourist or mixed -residential and tourist- areas or urbanizations of the Canary Islands Decree 113/2015 art.3.2 is void ; as well as the prohibition of shared use of homes with the imposition of the complete transfer to the same person of the Canary Islands Decree 113/2015 art.12.1 ( TSJ Sta. Cruz de Tenerife 21-3-17, EDJ 175283 ; TS 15-1-19, EDJ 505844 ).

Requirements

(D Canary Islands 113/2015 art.6 and 10)

Holiday homes must have a minimum level of equipment in each of their rooms, proportional to the number of occupants and in accordance with the activity carried out there. For example:

– security lock on access doors;

– first aid kit;

– effective darkening system for each bedroom you have;

– household appliances, etc.

Prices for accommodation services must be displayed in the dwellings , indicating the date on which they are advertised or announced publicly and, therefore, applied. A distinctive plaque must also be displayed in a visible place at the entrance, provided that there is no express prohibition by the rules of the community of owners.

Procedure for starting an activity

(Canary Islands Decree 113/2015 art.13)

The following requirements must be met:

• Prior to the start of the activity, the owners of the same must submit the responsible declaration to the corresponding island council, stating:

– that the legal requirements are met (no. 4152 ) and that the owner has the documentation to prove this, with a commitment to continue doing so during the period in which the home is dedicated to this activity;

– in the statutes of the community of owners to which the property belongs there is no express prohibition that prevents it from being used as a holiday home;

– the number of bedrooms and that the maximum occupancy capacity will not be exceeded, in accordance with the accredited housing conditions.

• Along with this declaration of commencement of activity, the following must be attached :

– certificate of habitability or first occupancy license ( Canary Islands Decree 117/2006 ); and

– a responsible declaration, where applicable, that the statutes of the community of owners prohibit the placement of identification plates for the holiday home activity, outside or in common areas.

Clarifications

The subordination of the delivery of the documentation necessary for the start of the activity to the registration in a registry, initially established in the Canary Islands Decree 113/2015 art.13. 3 ( TSJ Sta. Cruz de Tenerife 21-3-17, EDJ 175283 ; TS 15-1-19, EDJ 505844 ), is void.

6. Cantabria

(D Cantabria 225/2019 )

In Cantabria, the transfer of housing for tourist purposes is regulated in the form of temporary transfer of housing for tourist use, either temporarily or shared.

Clarifications

Prior to this date, this activity was not specifically regulated, so it was included within extra-hotel tourist accommodation as an activity that can be carried out by both legal entities and individuals. What is relevant about this other activity is that it is carried out on a regular or professional basis, providing clients with residence in tourist apartments, studios, bungalows or chalets, marketed or promoted on tourist supply channels for profit. The accommodations must be provided for a fee and in conditions of immediate use. This service may be accompanied by other complementary services.

Accommodation modalities and requirements

(D Cantabria 225/2019 art.3 s.)

These accommodations are considered a tourist service and, in addition to complying with the current legislation on this matter ( L Cantabria 5/1999 ), they must meet the following characteristics and requirements :

• Tourist housing is located in buildings situated on land for residential use.

• Temporary and tourist-oriented transfers are presumed whenever the properties are offered on a tourist channel of any kind or by any other means of marketing or promotion. For these purposes, the following are considered:

– that there is a temporary transfer when the occupation does not imply a change of residence of the user; and

– tourist offering channels are tourist intermediation companies, both physical and virtual – travel agencies, reservation centres, promotional websites, rental websites or marketplaces.

• Tourist housing is classified into two types :

– full transfer, not allowing transfer for stays; or

– shared transfer, the owner must reside there.

In both cases, they must be marketed in habitable conditions and immediately available. 

Obligations of the owners

(D Cantabria 225/2019 art.6)

Homeowners are subject to compliance with the following obligations towards users:

identification plate outside the entrance door of the tourist accommodation, and in a visible place the information sign indicating the availability of official complaint forms and the telephone number provided to immediately deal with any circumstance affecting the stay.

• Provide official complaint forms from the General Directorate responsible for tourism. These forms must be available to users in a suitable place within the tourist accommodation.

• Inform the interested public of the rules of use , as well as the operating season of the tourist accommodation, with express mention of the opening and closing dates and the accepted forms of payment.

• Issue and deliver to users proof of payment for accommodation.

• Keep the website updated , if the property has one, responding to requests for information that arrive through this communication tool.

• Display the registration number of the General Registry of Tourist Companies of Cantabria , after communicating it to the interested party, in all advertising of the tourist activity.

• Provide accommodation services with the furniture and equipment necessary for immediate use .

• The property must be provided in perfect conditions of cleanliness, hygiene and preparation at the time of occupancy by the guests. A general cleaning of the property and a change of linen must be carried out each time a guest stays. Any damage or breakdowns that occur during the guest stay will be repaired immediately.

• Display the prices of the services offered in a clearly visible and easily readable place for the public, with due detail of the final price that will be applicable to the user, stating separately and with sufficient clarity each of the services and concepts in such a way that it enables the user to make a decision before contracting a tourist service.

Procedure for starting an activity

(D Cantabria 225/2019 art.5 s.)

In order to start the activity, the mandatory responsible declaration of opening ( D Cantabria 225/2019 annex I ) must be submitted to the General Directorate responsible for tourism matters beforehand, stating, under your responsibility, that you meet the requirements established to carry out the activity; that you have the documentation that proves this; and that you undertake to maintain compliance until you cease carrying out said activity.

In any case, this responsible declaration will expressly refer to compliance with the following requirements :

• Have one fire extinguisher per floor, installed in a visible and easily accessible location.
• Have sufficient legal title proving ownership of the home.
• Have a certificate of habitability.
• In the case of homes located in properties subject to the horizontal property regime, a declaration that the statutes or agreements adopted by the community of owners do not prohibit or establish restrictions on the use of the property for tourist purposes.
• Declaration that the home is not classified as protected.

This declaration, made in these terms, authorizes the exercise of tourist activity from the same day of its presentation, and the property is also registered in the General Registry of Tourist Companies of Cantabria, for the purposes of subsequent control and inspection.

7. Castile-La Mancha

(L Castilla-La Mancha 8/1999 ; D Castilla-La Mancha 36/2018 redaction D Castilla-La Mancha 253/2023 )

In Castilla-La Mancha, tourist rental properties are called tourist-use properties. In addition to their regulation, the procedure for starting the activity is also analysed.

Tourist housing

(D Castilla-La Mancha 36/2018 art.2.c)

Tourist housing is They are defined as those apartments, houses, chalets or other similar properties, furnished and equipped in conditions of immediate use, which are marketed or promoted in tourist supply channels to be temporarily ceded on two or more occasions a year, advertised in any type of own or third-party marketing channel, for tourist accommodation purposes and in exchange for consideration.

Tourist accommodation properties that regularly provide tourist accommodation cannot be used as permanent residences or for any other purpose other than tourist use.

Requirements

(D Castilla-La Mancha 36/2018 art.16.1 and 2, 17-redacc D Castilla-La Mancha 253/2023-)

Tourist accommodation has the capacity determined in the first occupancy license and consists of, as a minimum, a living-dining room, kitchen, bedroom and bathroom. In addition, they must:

– comply with the provisions of current regulations regarding habitability and safety for residential use as housing;

– comply with the statutes of the community of owners , which may not contain an express prohibition on the activity of tourist accommodation;

– have direct ventilation to the outside or to patios, with blinds or a similar darkening system on the windows;

– be furnished and equipped with all the necessary appliances and equipment for immediate use and in accordance with the number of occupancy places;

– have heating and air conditioning in the bedrooms and living room;

– have a first aid kit ;

– provide cleaning services for the home upon arrival and departure of new clients;

– provide bed linen, linen, general household items, depending on the maximum occupancy of the home and a replacement set;

– provide users with a telephone number to answer and resolve questions and incidents relating to the home immediately in a visible place;

– operating instructions for household appliances or other devices that require them for correct use must be made available to users of the home;

– have a Wi-Fi internet connection ;

– make available to clients the internal rules regarding the use of the facilities and outbuildings of the property, as well as the admission or not of pets, restrictions for smokers, and restricted use areas.

At the entrance door of each tourist dwelling, in a visible place, a standardized distinctive plate must be displayed , in accordance with the appropriate technical requirements.

Tourist accommodation located in the historic complexes of World Heritage cities must display, next to the main entrance of the establishment and in a visible place, the standard distinctive plaque specific to these cities.

registration code from the Registry of Tourist Companies and Establishments of Castilla-La Mancha must appear in all advertising, promotional or marketing activities .

Procedure for starting an activity

(D Castilla-La Mancha 36/2018 art.6)

Companies or owners of tourist apartments and tourist homes must:

• Submit the responsible declaration of commencement of activity to the competent tourism authority.
• Once the responsible declaration has been submitted, it must be registered in the Registry of Companies and Tourist Establishments of Castilla-La Mancha.

8. Castile and Leon

(D Castile and Leon 3/2017 )

In Castilla y León, homes for tourist purposes are called homes for tourist use. In addition to their regulation, the procedure for starting the activity is being studied.

Clarifications

The Supreme Court has upheld the validity of Decree Castilla y León 3/2017 art.4.cyd, 6, 7 to 12, 25 and 30.4 , challenged by the CNMC, which considered them obstacles to free competition ( TS 24-9-19, EDJ 693855 ).

Tourist housing

(D Castile and Leon 3/2017 art.2)

Tourist accommodation is defined as flats, houses, bungalows, chalets or other similar properties, which are marketed or promoted on tourist supply channels for tourist accommodation purposes, in exchange for financial compensation, to be transferred in their entirety to third parties for a period not exceeding 2 consecutive months, on a regular basis.

A habitual assignment is understood to mean providing accommodation on one or more occasions within the same calendar year for a period that in total exceeds one month.

Complexes or blocks made up of 2 or more tourist accommodation units operated by the same owner are not considered dwellings for tourist purposes and the legal regime of tourist apartments applies to them.

Requirements

(D Castilla y León 3/2017 art.7 to 12)

The requirements that tourist accommodation must meet are the following:

• First occupancy license . The homes must comply at all times with the technical and quality conditions required for such homes.

• Facilities . Tourist accommodation must have at least one bedroom, living-dining room, kitchen and bathroom or toilet; except for studio-type accommodation, in which the bedroom, living-dining room and kitchen will occupy a common space.

• Common services . Tourist accommodation must have:

– permanent supply of hot and cold water suitable for human consumption;

– adequate and sufficient electricity supply;

– heating;

– supply of fuel necessary, where appropriate, to ensure the proper functioning of all services;

– first aid kit;

– cleaning and changing bed and bath linen when new guests arrive;

– maintenance and repair of facilities and equipment;

– cribs, when required by the tourist.

• Identification plate . It must be displayed at the entrance of the home ( D Castilla y León 3/2017 art.6 ).

Procedure for starting an activity

(D Castile and Leon 3/2017 art.15)

Owners of tourist accommodation establishments must meet the following requirements:

• Submit a declaration of responsibility addressed to the head of the competent body in tourism, which must state that the establishment complies with the requirements set out in the applicable regulations, that it has the documents that prove this and that it undertakes to maintain its compliance for the time inherent to the exercise of the activity.

• In order to submit the responsible declaration, you must have the first occupancy license , habitability certificate or corresponding municipal authorization.

• Once the responsible declaration has been submitted in the terms provided, the competent body will automatically register the tourist accommodation in the Castilla y León Tourism Registry .

9. Catalonia

(L Catalonia 13/2002 editorial L Catalonia 3/2023 ; D Catalonia 75/2020 editorial L Catalonia 3/2023 )

In Catalonia, homes for tourist purposes are called homes for tourist use. Along with their regulation, the procedure for starting the activity is analysed.

Tourist housing

(L Catalonia 13/2002 art.2.h draft L Catalonia 3/2023, 50 bis ; D Catalonia 75/2020 art.221-1, 131.2.1.a draft L Catalonia 3/2023)

Housing for tourist use is considered to be housing that is ceded by its owner, directly or indirectly, to third parties, in exchange for financial compensation for a seasonal stay and under conditions of immediate availability.

A seasonal stay is considered to be any occupation of the dwelling for a contiguous period of time equal to or less than 31 days.

Tourist accommodation is leased in its entirety and may not be leased for individual stays.

Homes that are not properly equipped cannot be transferred.

In the event that the owner of a property becomes aware of clandestine activity , he or she has the duty to notify the competent Administration, as well as to undertake the corresponding civil actions aimed at effectively stopping the tourist activity.

The purpose of a tourist dwelling must be compatible with the regulations of the uses of the sector where it is located and with the civil regulations that apply to it.

The details of the tourist accommodations that appear in the Registry are as follows: owner, name, address, telephone number, email, type, group, category and distinctive sign, as well as the number of units and places in the accommodation.

In the case of tourist homes and shared homes , the property’s cadastral reference and the number of the habitability certificate must be added.

Requirements and services of the activity

(D Catalonia 75/2020 art.221-2)

The dwellings cannot be occupied with more places than those indicated in the certificate of occupancy and, in any case, their maximum capacity cannot exceed 15 places.

The homes must be sufficiently furnished and equipped with the necessary appliances and utensils to be occupied immediately, in order to provide a proper accommodation service in relation to the total number of places available, all in a perfect state of hygiene.

The owner of the property, or the manager to whom he or she delegates, must:

– provide users and neighbours with a telephone number to immediately answer and resolve queries and incidents relating to the tourist accommodation activity;

– ensure a housing assistance and maintenance service ;

– provide users with a document containing the rules of coexistence agreed upon by the community of owners where the property is located, if there is one. This document must be written, at least, in the following languages : Catalan, Spanish, English and French.

In the event that the user of a tourist home violates the basic rules of coexistence or fails to comply with municipal ordinances issued for that purpose, the owner of the property, or the person managing the tourist home, must require the transferee to leave the home immediately.

Tourist accommodation must display the NIRTC notice, its maximum capacity and the telephone number for assistance and maintenance in a visible and easily located place for users. Those that do not yet have the NIRTC will temporarily replace its display with the provisional number .

The minimum tourist requirements are listed in D Catalonia 75/2020 annex 6 .

Clarifications

The tourist rental platform Airbnb must comply with Catalan regulations and stop advertising on its portal apartments that do not have a registration number in the Registry of Catalonia ( TSJ Catalonia 3-11-19, EDJ 750413 ). 

Containment of tourist housing

(DLeg Catalonia 1/2010 art.187.1.py disp.adic.27th editorial DL Catalonia 3/2023)

With effect from 9-11-2023 , a series of measures have been adopted in Catalonia on the urban planning regime for tourist housing in order to alleviate its impact on the housing market and, specifically, on the lack of supply of residential housing.

In this sense, it is established, as a prerequisite to the start of the activity, the obtaining of an urban planning license , valid for 5 years, for municipalities that are in one of these two situations:

• Municipalities withproblems with access to housing , which are those who have proven housing needs and meet at least one of the following requirements:

– the average cost of rent or mortgage on the personal or household budget, plus basic expenses and supplies, exceeds 30% of the average income or average household income; or

– that between 9-11-2018 and 9-11-2023 the rental or purchase price of housing has experienced an accumulated growth percentage at least 3% higher than the accumulated growth percentage of the CPI of Catalonia.

• Municipalities at risk of upsetting the balance of the urban environment due to a high concentration of tourist housing are those with a ratio of 5 of them per 100 inhabitants as of 9-11-2023.

The list of municipalities that are specifically considered affected by these situations, included in the DL Catalonia 3/2023 annex , will be valid for 5 years, after which they will be reviewed.

transitional regime is established for homes that were duly equipped and located in one of the affected municipalities as compensation for all concepts related to the modifications introduced by the new regulation. Thus:

• Within a period of 5 years , from 9-11-2023, they must obtain the urban planning license in accordance with the regime established in the DLeg Cataluña 1/2010 disp.adic.27ª or cease the activity, unless they prove that this transitional regime does not compensate for the loss of the title enabling tourist use housing, in which case they can request the city council to extend it for 5 more years, before the end of that first period.

• This same regime applies to municipalities that in the future become part of the list of those affected by the need to have a prior urban planning license , with the period of 5 years being calculated from the date the order that includes it comes into force.

Finally, in line with these measures, the Urban Planning Law of Catalonia is modified, adding these cases among those subject to urban planning licence ( DLeg Catalonia 1/2010 art.187.1.p ) and specifically establishing the urban planning regime for tourist housing ( DLeg Catalonia 1/2010 disp.adic.27ª ):

– they are required to have the corresponding urban planning license in certain municipalities, regardless of other licenses or authorizations that may be necessary;

– urban planning must expressly allow for the compatibility of the use of tourist housing with the use of housing intended as a habitual and permanent residence;

– in no case may more licences be granted than those resulting from applying a maximum of 10 tourist dwellings per 100 inhabitants; and

– the updating of the list of municipalities in which the use of tourist housing will require a prior license must be done by order of the person in charge of the department responsible for urban planning, after hearing from the municipalities.

10. Extremadura

(L Extremadura 2/2011 ; D Extremadura 182/2012 )

Tourist apartment 

In Extremadura there is no specific regulation for tourist accommodation. These are covered by the regulations for tourist apartments. These are blocks of flats, apartments, houses and other similar buildings that promote or market tourist accommodation services through information or marketing channels, whatever their support, for financial compensation, and that have the appropriate facilities for the preparation, conservation and consumption of food within each accommodation unit.

These apartments must :

– be within urban centers;

– be furnished and equipped in a condition for immediate use; and

– be marketed and promoted on tourist supply channels.

On the other hand, the transfer of the apartments must be carried out:

– in its entirety and not by room;

– for tourist accommodation purposes and not as a dwelling or residence; and

– for profit and not free of charge.

Procedure for starting an activity

(D Extremadura 182/2012 art.24 s.)

responsible declaration of commencement of non-hotel tourist accommodation activities must be submitted to the regional authority responsible for tourism , using a formalised form.

From this presentation, the activity can be carried out indefinitely.

11. Galicia

(L Galicia 7/2011 ; D Galicia 12/2017 )

In Galicia, there are two categories of housing for tourist purposes:

– tourist accommodation; and

– housing for tourist use.

In addition to the regulation of each of them, the procedure for starting the activity of both is analyzed.

Tourist accommodation

(L Galicia 7/2011 art.65 ; D Galicia 12/2017 art.4)

Tourist housing is understood to be a single-family establishment that provides tourist accommodation services, with a number of places not exceeding ten and that has, by structure and services, the facilities and furniture suitable for immediate use, as well as for the conservation, preparation and consumption of food within the establishment.

The marketing of tourist accommodation must consist of the temporary transfer of the use and enjoyment of the entire property, which is why the formalisation of contracts for rooms or the coincidence within the property of users who formalise different contracts is not permitted.

The duration of the stay is freely agreed upon by the parties, although the period of continuous accommodation may not exceed 3 months ( D Galicia 12/2017 art.9.1 ).

Tourist accommodation must meet the following requirements ( D Galicia 12/2017 art.23 s. ):

– must have, as a minimum, the following rooms : bedroom, living-dining room, kitchen and bathroom;

– must be delivered to the user in perfect condition for use;

– must have drinking water for human consumption as well as treatment and disposal of waste water;

– the capacity of the dwelling may not exceed 10 places under any circumstances;

– must have a heating system ;

– must display an identification plate on the outside of the main entrance, in a highly visible place, showing the logo corresponding to the group and category of the establishment;

– printed advertising , invoices and other documentation must indicate, in a manner that does not cause confusion, the category in which the establishment is classified, as well as the registration number granted by the tourist administration;

– liability insurance must be in place to cover the risks to users of the establishment for bodily injury, material damage and economic losses caused by the development of its activity. 

Procedure for starting an activity

(D Galicia 12/2007 art.30)

Any entrepreneur who intends to operate a tourist residence must meet the following requirements:

• Submit the responsible declaration to the competent tourism administration, attaching the following documents:

– memory, and plans; and

– proof of payment of fees.

The presentation of the responsible declaration enables the development of the activity from its presentation.

• The competent tourism administration of the provincial area in which the establishment is located will register it ex officio in the Registry of Tourist Companies and Activities of Galicia .

• A prior communication of the start of activity must be submitted to the city council.

Tourist housing

(L Galicia 7/2011 art.65 bis ; D Galicia 12/2017 art.5)

Tourist accommodation is a property transferred to third parties for tourist purposes . This purpose is understood to exist when the transfer is made:

– repeatedly, that is, two or more times within a period of one year;

– in exchange for financial compensation; and

– for a short-term stay, i.e. for a duration of less than 30 days.

Marketing consists of the temporary transfer of the use and enjoyment of the entire home without being able to formalize contracts for rooms or having users who have formalized different contracts coincide within the home .

This marketing can be carried out by tourist companies ( L Galicia 7/2011 art.33 ), by the owner or by his representative.

For this marketing, the requirements set out below must be met.

Requirements

(L Galicia 7/2011 art.65 bis.2 ; D Galicia 12/2017 art.39)

The marketing of tourist accommodation must meet the following requirements:

• They must be furnished and equipped in conditions of immediate availability.

• They must comply with the regulations on promoting accessibility and removing architectural barriers , which will be the same for buildings for private residential use.

• They must have civil liability insurance that covers the risks to users of the establishment for bodily injury, material damage and economic losses caused by the development of their activity.

• They must have the first occupancy license or habitability certificate, or a final certificate of work that proves that the works were carried out in accordance with the license granted.

• Since these are not tourist accommodations or the provision of tourist services covered by sectoral regulations on tourism, and in order to guarantee and protect the rights of tourist users, these transfers cannot be promoted, marketed or advertised on tourist supply channels or by any other means of marketing, promotion or advertising as tourist services or activities or in such a way that they create confusion with these services or activities.

Procedure for starting an activity

(D Galicia 12/2017 art.41)

The following requirements must be met to start the activity:

• Submit the responsible declaration to the competent tourism administration, attaching the following documents:

– memory and plans; and

– proof of payment of fees.

• The presentation of the responsible declaration enables the development of the activity from its presentation.

• The competent tourism administration where the establishment is located will automatically register the establishment in the Registry of Tourism Companies and Activities of Galicia.

periodically provide information on the occupancy data of tourist accommodation is imposed , as these are the only tourist accommodations for which the Administration does not have such data.

Likewise, it is mandatory that all advertising or promotional activities for tourist housing carried out, by any means or channel, include the corresponding registration code in the Registry of Tourist Companies and Activities of the Autonomous Community of Galicia or, if this is not available, the code proving the presentation of the responsible declaration provided by the Administration. 

12. La Rioja

(L La Rioja 2/2001 ; D La Rioja 10/2017 )

In La Rioja, homes for tourist purposes are called homes for tourist use. In addition to their regulation, the procedure for starting up their activity is also discussed.

Tourist housing

(D La Rioja 10/2017 art.66 s.)

Tourist dwellings are those furnished and equipped in conditions of immediate use , subject to a temporary transfer for tourist purposes and in their entirety, and are marketed or promoted for profit in tourist supply channels, and do not form part of an apartment establishment.

transfer of rooms was no longer prohibited , although these cases must be subject to the regime applicable to pensions, requiring communication of the start of activity as such.

The maximum accommodation capacity is double the number of rooms in the house, including the living room, and up to a maximum of 8, including any convertible and extra beds.

Capacity will be determined by the total number of beds in the rooms, with beds with a width greater than 1.35 metres being counted as two accommodation places.

In La Rioja, homes that are rented for a single consecutive period of 3 months or less per year, regardless of actual occupancy during that period, are not considered tourist accommodation, even if they meet the rest of the requirements.

A property cannot be used for tourist purposes when, where applicable, this is prohibited by the bylaws of the community of owners , or it does not comply with the municipal regulations applicable to the exercise of the activity. In addition, when the properties are part of a community of owners, complementary services and facilities to the accommodation or lodging activity that may cause inconvenience and harm to the neighbours cannot be offered. In this sense, it is strictly forbidden to offer the property for parties, events and similar.

The management of tourist accommodation can be carried out by individuals who do not professionally or habitually carry out this task or by management companies, with this being considered as the physical or legal persons, whether or not they are the owners of the accommodation, who regularly and professionally manage the transfer of the accommodation.

The homes must, in any case, meet the minimum conditions required by the regulations governing the habitability conditions of homes ( D La Rioja 10/2017 art.66.5 ).

Procedure for starting an activity

(D La Rioja 10/2017 art.8 and 9)

To start the activity, a communication of commencement of activity must be submitted, which will allow the activity to be carried out for an indefinite period from the day of its submission.

However, additional obligations have been established regarding the documentation that must be attached to the communication of the start of activity of the establishments. Thus, it must be accompanied by whatever is required to verify compliance with the applicable sectoral regulations, especially urban planning regulations, in order to proceed with the corresponding classification and registration in the Registry of Tourist Service Providers.

Registry of Tourist Service Providers is established , together with the impossibility of continuing with the activity, as a consequence of the inaccuracy, falsity or essential omission of any data, statement or document provided.

For these purposes, ” essential inaccuracy, falsehood or omission ” is also defined as that which would have justified registration in the register of tourist service providers or, where appropriate, would have served to obtain a higher category for the establishment.

the establishments will be inspected , if applicable, in order to:

– check whether registration in the Registry of Tourist Service Providers is appropriate; and

– determine the corresponding classification, since tourist housing does not have categories, registration must be carried out in accordance with the information provided in the communication of the start of activity.

13. Madrid

(L Madrid 1/1999 ; D Madrid 79/2014 )

In Madrid, homes for tourist purposes are called homes for tourist use. Apart from their regulation, the procedure for starting the activity is being studied.

Clarifications

With effect from 13-4-2019, the Madrid Decree 79/2014 , regulating tourist housing in the Community, was amended in order to incorporate both the judicial pronouncements on this rule, as well as the judgment TS 10-12-18, EDJ 650792 , and the principles that inspire the European regulation in this matter -Dir 2006/2013/CEE and PE Resol 2017/20038/INI-.

Tourist housing

(D Madrid 79/2014 art.2.2)

Tourist accommodation is the flats, studios, apartments or houses that, furnished and equipped in conditions for immediate use , are marketed and promoted through tourist supply channels, or by any other means of marketing or promotion, to be transferred in their entirety by their owner to third parties, for tourist accommodation purposes and in exchange for a price.

This activity must be carried out on a regular basis, which occurs when the interested party advertises by any means and presents the mandatory responsible declaration of commencement of activity (no. 4216 ).

They cannot be assigned by room, or in any other way that implies segregation or division.

Requirements

(D Madrid 79/2014 art.18 s.)

Tourist accommodation must meet the following requirements:

1. a) They must be composed, at least, of the following departments :

– living-dining room;

– kitchen;

– bedroom; and

– bathroom.

1. b) They must be contracted with the following minimum services : furnished, equipped and ready for immediate use, and must have a connection to telematic means.

1. c) The transfer of rooms is prohibited .

1. d) They must be classified in a single category .

distinctive plaque must be displayed in a visible place on the door of each tourist dwelling .

Procedure for starting the activity

(D Madrid 79/2014 art.11 and 17 s.)

Owners of tourist apartments must meet the following requirements:

• Submit a responsible declaration of commencement of tourist accommodation activity to the competent tourism authority.

• The responsible declaration must be accompanied by a ” certificate of suitability “, as a technical document that must be issued by an architect or technical architect – without the need for a professional visa – to guarantee users compliance with the legal requirements that enable tourist use (heating, water supply, ventilation, fire extinguishers, etc.).

• Once the responsible declaration has been submitted, it will be registered in the Registry of Tourist Companies of the Community of Madrid, in accordance with Madrid Law 1/1999 art.23 .

14. Murcia

(L Murcia 12/2013 ; D Murcia 256/2019 )

Tourist accommodation, classified in a single category , has been included in a generic category called “holiday accommodation”, which is different from tourist apartments.

Clarifications

Since 11-8-2019, owners who were already offering their homes were offered a period of 6 months to regularize their situation .

Houses and rooms for tourist use

(D Murcia 256/2019 art.2 s.)

Tourist housing is considered to be:

– are temporarily transferred to third parties;

– regularly – two more times per year – and at a price;

– furnished and equipped in a condition for immediate use; and

– for vacation purposes.

Likewise, it is necessary that these homes be marketed or promoted through tourist supply channels , of any type, as long as they allow the housing to be advertised and offered – travel agencies, reservation centres or companies that mediate the organisation of tourist services, any internet service, etc.

These homes can be transferred in two ways :

– in its entirety;

– for rooms intended for sleeping.

The basic requirements that these homes must meet are the following:

• When rented out in full, they must have, as a minimum, a living-dining room, kitchen, bedroom and bathroom. When the living-dining room and kitchen are integrated into the bedroom space, the maximum capacity will be two people.

• If the apartments are rented in rooms, they must have a kitchen, bathroom, living-dining room and at least one bedroom for tourist accommodation other than that reserved for the owner, who must have his or her actual residence in the apartment. Studio apartments are not permitted.

• All premises must have the established basic surface area and equipment ( D Murcia 256/2019 art.14 to 18 ).

• The minimum services , which must be included in the price, are:

– supply of water, electricity and, where appropriate, gas;

– conservation, maintenance and repairs, except those that exceed normal and diligent use;

– garbage collection from public roads or areas specifically designated for its storage;

– cleaning before entry;

– use and enjoyment of swimming pools, gardens, playgrounds and common terraces, with their own elements;

– use and enjoyment of open-air parking lots, without surveillance or reservation of spaces; and

– community of owners expenses.

Procedure for starting an activity

(D Murcia 256/2019 art.28 s.)

Prior to the provision of the service, a responsible declaration for tourist classification must be submitted to the Tourism Institute of the Region of Murcia, according to a standard model. From that moment on, tourist activity may be carried out, although they must comply with the regulations that apply to them and be in possession of other licenses, authorizations or other titles of intervention that are required by other organizations by virtue of their respective powers.

15. Navarre

(LF Navarra 7/2003 ; DF Navarra 230/2011 )

In Navarra, homes for tourist purposes are called tourist homes. Along with their regulation, the procedure for starting their activity is being studied.

Tourist accommodation

(DF Navarra 230/2011 art.3)

These are tourist apartments such as houses, villas, chalets, caves, prefabricated buildings or similar of a fixed nature, and semi-detached houses or independent parts of a building, which are rented out for holiday use.

It is required that:

– have a minimum useful area of 90 m2 ;

– that have independent access; and

– that have vertical segregation.

In addition, a standard plaque showing the corresponding identification of the dwelling must be displayed next to the main entrance.

Procedure for starting an activity

(DF Navarra 230/2011 art.9)

Prior to the start of the activity, and in order to register the establishment in the Navarra Tourism Registry, the following documentation must be submitted:

• Responsible declaration of commencement of activity by the owner of the property, with his/her details and stating that he/she has:

– the legal documentation that accredits you as such and as the owner of the property, tenant or any title that accredits its availability to be used as tourist accommodation, as well as the data referring to the establishment in terms of location and capacity;

– certificate of habitability, opening license, or document that replaces it; and

– operating liability insurance contract.

• Along with the responsible declaration, the final construction plans must be submitted or, failing that, the surface area of each room.

16. Basque Country

(L Basque Country 13/2016 ; D Basque Country 101/2018 )

types of housing for tourist purposes are distinguished in the regulations:

– housing for tourist use (no. 4234 ); and

– accommodation in rooms in private homes for tourist use (no. 4238 ).

The regime of each of them is analyzed, as well as the procedure for starting activity (nº 4242 ).

Housing for tourist use

(L Basque Country 13/2016 art.53.1 ; D Basque Country 101/2018 art.1.2)

Tourist housing is any housing, regardless of its type, that is offered or marketed as accommodation for tourist or holiday purposes , and that is ceded in its entirety, and temporarily, repeatedly or regularly and under conditions of immediate availability, in exchange for financial compensation.

They must meet the following requirements :

– they may be marketed directly by the owner, operator or manager, or indirectly, through third parties;

– habitual residence is presumed when the properties are advertised or marketed in any type of medium, medium or channel of tourist offering or when accommodation is provided for a continuous period of time equal to or less than 31 days, two or more times within the same year;

– they must have a first occupancy license or habitability certificate;

– They must comply with urban planning regulations and must have at least a kitchen, bathroom and a room intended for sleeping, considering as such, in addition to the bedrooms, the living rooms enabled for that purpose.

Accommodation in rooms in private homes

(L Basque Country 13/2016 art.54.1 ; D Basque Country 101/2018 art.1.3)

Accommodation in rooms for tourist use refers to accommodation in rooms in private homes, on a temporary, repeated or regular basis, for a fee, offered for holiday or tourist purposes.

place of residence of the owner is considered a private home .

In rooms in private homes for tourist use, the following requirements must be met :

– the prohibition of offering rooms in more than one dwelling;

– only one natural person can be the owner of the accommodation activity;

– must comply with the requirements regarding infrastructure, urban planning, construction and building, safety, those relating to the environment, health and consumption, hygiene and occupational health in compliance with the regulations on the prevention of occupational risks, as well as, where appropriate, those required by other applicable regulations.

Procedure for starting an activity

(D Basque Country 101/2018 art.5)

To start the activity in both types of housing, the following procedure must be followed:

1. a) Submission of a responsible declaration of commencement of activity to the competent tourism administration.

In order to submit the responsible declaration, the following must be completed:

– identify the owner of the activity, using the tax identification number; and

– identify the location of the accommodation, with its cadastral reference;

1. b) When submitting the responsible declaration, compliance with the following requirements must be accredited :

– ownership of the right to enjoy or manage the property – property deeds, lease agreement, activity management contract, document establishing the community of property or other similar documents;

– compliance of the tourist activity with the municipal regulations regarding urban uses and construction. The dwelling must have a first occupancy license;

– the required environmental ones ;

– conditions and operating regime of the activity according to the applicable tourism regulations;

civil liability insurance and latest payment receipt;

– in the case of housing for tourist use, if the person holding the activity is a legal entity : deeds of incorporation, deeds of power of attorney of the legal representative of the company;

– in the case of accommodation in rooms , effective residence must be accredited by means of the registration of the person holding the activity;

– compliance with tax obligations and, where applicable, with occupational health and hygiene regulations and prevention of occupational risks.

1. c) The responsible declaration must be accompanied by the following documentation :

– scale plan, indicating purpose and usable area – excluding terraces, balconies or clotheslines -, distribution and maximum number of spaces;

– photos of the facade and interior; and

– photocopy of the ID of the person who signs the responsible declaration.

1. d) The complete presentation of the responsible declaration of commencement of activity enables from that moment on the development of the activity, with the immediate effect of its registration in the Registry of Tourist Companies and Activities of the Basque Country.

17. Valencian Community

(L C.Valenciana 15/2018 ; D C.Valenciana 10/2021)

The regulation on tourist accommodation unifies in a single rule the regulations that, until the time of its publication, were scattered for the different types of accommodation:

– the procedure for registration in the Tourism Registry of the Valencian Community;

pricing regime applicable to service providers;

– the system of distinctive signs for tourist accommodation companies and establishments; and,

– for all types of accommodation, the responsible declaration of commencement of activity, modification of any of its essential characteristics, cessation of the provision of the service and change of ownership.

last update

Valencian Community: modification of the regulations governing tourist housing

(Actum 8/24, August 2024)

Some aspects of the regulations governing tourist accommodation have been modified.

 L C.Valenciana 15/2018 art.19, 64 bis, 65, 77.5, 78.3, 88, 91, 92.16, 93, 95 and 98 redacc DL C.Valenciana 9/2024 , DOGV 7-8-24

 D C.Valenciana 10/2021 art.23, 23 bis, 27, 30, 33.2, 37, 47, 47 bis, 49 and annex III redacc DL C.Valenciana 9/2024 , DOGV 7-8-24

The main changes, which take effect 8-8-2024, are as follows

1. a) Tourist housing is redefined in order to differentiate between tourist use, seasonal use and residential use: Tourist housing is considered to be entire properties (transfer by room is not permitted), regardless of their type, which are transferred for a fee, under conditions of immediate availability, for tourist purposes, for a period of less than or equal to 10 days, computed continuously, to the same tenant, and which have a favourable municipal report on urban compatibility for tourist use, or an equivalent document as determined by regulation, as well as, where applicable, the municipal enabling titles required for such use or activity.

In any case, it is presumed that there are tourist purposes when any of the following circumstances occur with respect to the property, therefore applying the tourism sector regulations:

– when it is ceded for tourist use by companies managing tourist housing;

– when it is made available to tourist users by its owners or holders for this purpose, whether or not services specific to the hotel industry are provided;

– when using tourism marketing channels: through tour operators or any other tourist sales or promotion channel, including the Internet, or other new technology systems.

The following cannot be considered as tourist accommodation:

– dwellings that are rented for a period equal to or greater than 11 days computed continuously to the same tenant;

– the tourist rental of rooms, which is expressly prohibited;

– the rental of rooms for tourist use on boats, caravans or similar, with the exception of the regulatory framework for campsites.

1. b) A period of validity of registration in the Register is established to allow adaptation to a constantly evolving offer. Thus, the registration of tourist accommodation in the Tourism Register is valid for 5 years, with the exceptions expressly regulated in the Law and the development decree.

1. c) Design, quality, safety and accessibility conditions are established to provide the homes made available to tourists with minimum quality standards.

1. d) The sanctioning procedure is reviewed , with greater precision in the types of infringements, as well as the possibility of delegating the sanctioning power.

1. e) Additional technical measures are established to increase the transparency and quality of data on tourist accommodation, such as greater precision in the responsible declaration of commencement and in the required requirements, as well as measures to speed up the procedures for modification and deregistration in the Tourism Registry of the Valencian Community.

Thus, as a new feature, it is specified that the responsible declaration must contain the identification of the person or entity that owns the activity, including telephone number and email, for the purposes of notifications of availability of electronic notifications, as well as the identification of the person who owns the property, if different from the person or entity that owns the activity.

In addition, it must contain the identifying data of the property and an express statement on the following points:

– that the dwelling or dwellings are available for use as tourist accommodation and the documentation that proves this (property ownership deed, lease agreement, authorisation for management between the owner and the company, or other valid title for these purposes);

– that the dwelling or dwellings meet the requirements established by the regulations for their registration in the Registry with the communicated capacity, and that such requirements will be maintained during the duration of the activity;

– which has the municipal report on urban compatibility for favorable tourist use, or an equivalent document provided for in this regulation;

– that the cadastral reference entered is unique and individualised and corresponds to the current physical, economic and legal reality of the property or that, failing that, the unique registry code of the property is entered provisionally until the corresponding unique and individualised cadastral reference is obtained in less than a year;

– that it has a first or second occupancy license for the home or the equivalent enabling title, as well as, where applicable, the municipal enabling title required for its use as tourist accommodation, when in accordance with municipal planning the tourist housing use is residential (in cases of proven impossibility, an equivalent municipal report will be accepted);

– that the tourist accommodation meets the design, quality, accessibility and safety conditions and that it has the licenses, authorizations, enabling titles or other instruments of urban, environmental or municipal opening intervention required for its destination for tourist use, when in accordance with municipal planning the tourist accommodation use is considered tertiary;

– that it has civil liability insurance or other equivalent guarantee to cover any damages that may occur during the development of the activity;

– that the property has the licenses, certificates or authorizations required by other departments or public administrations, especially urban, environmental, horizontal property, health and opening, if required, and that it complies with all applicable sector regulations;

– if the establishment is located on non-developable common land , that the declaration of community interest has been obtained that attributes the corresponding tourist use and enjoyment or, where appropriate, that its exemption has been processed in accordance with current urban planning legislation;

– period of provision of the activity in the dwelling: the period of provision of the activity must be declared for each dwelling, and it may only be marketed for tourism purposes during the periods indicated;

– that it complies with the legal provisions relating to fiscal, tax, social security obligations and, in the case of having employees in its charge, those governed by the applicable collective agreement, corresponding to this economic activity;

– that it has a registration certificate proving that neither the constitutive title or the statutes of the community of owners , or any agreement of the latter, enforceable against third parties, determine the impossibility of use for purposes other than housing as a habitual residence, or that it has a certificate issued by the administration of the community of owners to the same effect;

RD 933/2021 are complied with , which establishes the documentary registration and information obligations of natural or legal persons who carry out lodging and motor vehicle rental activities or the regulation that replaces it;

– in the case of holding the rural specialty , which complies with the requirements provided for in the Valencian Decree 10/2021 art.68;

– that has the energy certificate of the property;

– in the case of tourist housing that is built in tertiary use premises of existing buildings, that the descriptive technical report included in the Valencian Decree 10/2021 art.49.3 is available.

The responsible declaration authorizes the exercise of the activity for a period of 5 years from its presentation and this must be stated in the corresponding registration.

last update

1. Valenciana. Requirements for tourist accommodation

(Actum 7/24, July 2024)

Various aspects relating to tourist housing are being modified in the Valencian Community.

 D C.Valenciana 10/2021 art.20.2, 21, 25.6, 27.1, 31.2, 64 redacc DL C.Valenciana 7/2024, DOGV 10-7-24

 L C.Valenciana 15/2018 art.53 redacc DL C.Valenciana 7/2024, DOGV 10-7-24

With effect from 11-7-2024 , various aspects related to tourist housing are modified in the Valencian Community:

• The relationship with all those interested in carrying out this activity, including the responsible declaration of commencement of activity and notifications – whether natural or legal persons – is carried out by electronic means ( LPAC art.14.3 and 41.1 ).
• When registering in the Tourism Registry of the Valencian Community , the following are considered to be inaccuracies, falsehoods or omissions of an essential nature in data, statements or documents:

– any data that must necessarily be included in the registration entry, in accordance with the provisions of the regulations, instead of merely proving the physical or legal personality of the person concerned;

– the municipal report on urban compatibility for favorable tourist use; and

– the availability of the declaration of community interest or its exemption, as well as licenses and urban and environmental reports where applicable.

• Classification and reclassification can be carried out at any time, instead of the 5 years established until now.
• Regarding the requirements that must be met by accommodations registered in the Registry, the communication by the competent administration that they lack the required authorization may give rise to deregistration, after processing the appropriate file, in which the interested party will be given a hearing.
• Under no circumstances can housing located in a municipal area bordering the sea be considered rural tourist housing , which means that the possibility of considering as such those that, being in one of these municipalities, are located in areas whose use is eminently agricultural, livestock or forestry, or that present an environmental, cultural or visual interest in accordance with the application of other sectoral policies and that allow the economic revitalization of the environment, is eliminated.

However, those dwellings located in residential areas on land with the same uses are now considered to be rural tourist dwellings.

Tourist housing

(D C.Valenciana 10/2021 art.7 s., 47 and 48)

The regulation applies to tourist accommodation establishments and their owners, whether natural or legal persons, to users of tourist accommodation and to the public administrations and entities involved. In this sense, “tourist accommodation” is one of the types included in this regulation, with the exception of:

– homes that are rented seasonally as established in the LAU; and

– the promotion, construction and sale of second homes.

For these purposes, “tourist housing” is considered to be any complete property , regardless of its type, which, with the municipal report on urban compatibility that allows such use, is transferred for a fee, on a regular basis, under conditions of immediate availability, and for tourist, vacation or leisure purposes.

habitual conduct is presumed when any of the following circumstances occur:

– that it be ceded for tourist use by companies managing tourist accommodation;

– that it is made available to users by its owners or holders, regardless of the contracted period of time and provided that services typical of the hospitality industry are provided;

– when using tourism marketing channels – tour operators or any other tourism sales channel, including the Internet or other new technology systems.

These homes are classified into the superior and standard categories , depending on the degree of compliance with the requirements set out in the Valencian Decree 10/2021 Annex II.

tourist housing management companies ” are considered to be natural or legal persons whose professional activity, whether principal or not, consists of the transfer for consideration of the use and enjoyment of at least five tourist housing units, regardless of whether or not they are located in the same building or complex, and regardless of the title that enables them to do so. In this sense, they are required to formalize an authorization for management with the owner and the company, expressly indicating that the responsibility for failure to comply with obligations is enforceable on the manager.

In addition to the general regulation that is made for all types of accommodation, the following is specifically established for tourist accommodation:

• In relation to the badge :

– it will be a red Pantone 485 adhesive vinyl, measuring 200×276 mm, approximately 6 microns thick and cut using a plotter with 10 mm radius corners. At the top, a space is reserved for the registration number in the Registry of each accommodation, with the contour of a house-shaped key ring; and

– the visible display at the entrance, inside or outside the premises.

• They are exempt from the obligation to have a reception or concierge service , 24 hours a day.

• Advertising for registered tourist accommodation must include their registration number. In the case of management companies jointly advertising different tourist accommodation units located in the same building, without this being considered a block and thus being registered in the corresponding register, this obligation will be deemed to be fulfilled with the inclusion of the management company’s registration number.

Rural tourist accommodation

(D C.Valenciana 10/2021 art.64 s.)

Tourist housing is considered rural when it is not located in a municipal area:

– bordering the sea, unless the use of the area is eminently agricultural, livestock or forestry, or if it presents an environmental, cultural or visual interest that is consistent with the application of other sectoral policies and allows the economic revitalization of the environment;

– included or linked to a metropolitan area;

– with a model of occupation and use of urban and not traditional rural territory.

Likewise, although due to the characteristics of the municipality it could be considered rural, the home will not be so if it is located, within it, in a residential area .

In addition to the location, to be considered as having a rural character, the tourist accommodation must meet the following requirements :

– the accommodation capacity must not exceed 16 places;

– the building in which it is located has traditional architectural, historical, cultural or ethnographic value, or responds to the architectural characteristics of the area;

– the town where it is located has less than 5,000 inhabitants; and

– that the furniture, equipment and decoration reflect the unique characteristics of the area in which they are located.

last update

1. Valenciana. Requirements for tourist accommodation

(Actum 7/24, July 2024)

Various aspects relating to tourist housing are being modified in the Valencian Community.

 D C.Valenciana 10/2021 art.20.2, 21, 25.6, 27.1, 31.2, 64 redacc DL C.Valenciana 7/2024, DOGV 10-7-24

 L C.Valenciana 15/2018 art.53 redacc DL C.Valenciana 7/2024, DOGV 10-7-24

With effect from 11-7-2024 , various aspects related to tourist housing are modified in the Valencian Community:

• The relationship with all those interested in carrying out this activity, including the responsible declaration of commencement of activity and notifications – whether natural or legal persons – is carried out by electronic means ( LPAC art.14.3 and 41.1 ).
• When registering in the Tourism Registry of the Valencian Community , the following are considered to be inaccuracies, falsehoods or omissions of an essential nature in data, statements or documents:

– any data that must necessarily be included in the registration entry, in accordance with the provisions of the regulations, instead of merely proving the physical or legal personality of the person concerned;

– the municipal report on urban compatibility for favorable tourist use; and

– the availability of the declaration of community interest or its exemption, as well as licenses and urban and environmental reports where applicable.

• Classification and reclassification can be carried out at any time, instead of the 5 years established until now.
• Regarding the requirements that must be met by accommodations registered in the Registry, the communication by the competent administration that they lack the required authorization may give rise to deregistration, after processing the appropriate file, in which the interested party will be given a hearing.
• Under no circumstances can housing located in a municipal area bordering the sea be considered rural tourist housing , which means that the possibility of considering as such those that, being in one of these municipalities, are located in areas whose use is eminently agricultural, livestock or forestry, or that present an environmental, cultural or visual interest in accordance with the application of other sectoral policies and that allow the economic revitalization of the environment, is eliminated.

However, those dwellings located in residential areas on land with the same uses are now considered to be rural tourist dwellings.

Procedure for starting an activity

(D C.Valenciana 10/2021 art.20 to 26)

Those who intend to develop the activity of tourist accommodation, in any of its modalities , must present, before the territorial tourism service of the province in which the accommodation is located, a responsible declaration in which they declare compliance with the requirements that apply to them for the intended typology, and, where applicable, classification, and the commitment to maintain them during the duration of the activity.

The content of the responsible declaration for tourist accommodation and tourist accommodation management companies must be as follows:

– that the property is available for use as a tourist destination and the documentation that proves this, as applicable – deed of ownership of the property, lease agreement, authorisation for management between the owner and the company, or other valid title for these purposes.

– that the dwelling meets the requirements established by the regulations for its classification in the category and capacity communicated, and that such requirements will be maintained during the duration of the activity,

– which has a favourable municipal report on urban compatibility that allows tourist use;

– who has a licence to occupy the dwelling;

– that has civil liability insurance or other equivalent guarantee to cover any damages that may occur during the development of the activity.

In addition to attaching, in all cases, proof of the physical or legal personality of the interested person or, in the case of natural persons, express signed authorization to the Administration to collect personal data, the list of homes must be accompanied by a favorable municipal report on urban compatibility.

The competent body, taking into account the responsible declaration made by the interested party, will classify the establishment for tourism purposes and will automatically register it in the Register, in the group, modality, category and speciality indicated in the responsible declaration, unless data has been omitted or essential documents have not been provided. Once registration has been made, the owner will be informed of the registration number assigned.

Tourist housing in communities of owners

Conflict resolution 

The phenomenon of tourist housing within communities of owners is one of the most controversial issues that has arisen in this area.

Renting a home for tourist purposes is not, in itself, a nuisance activity , but in practice it often creates problems of coexistence with neighbours, for example, due to the intensive use of common elements, which can be understood as an abnormal use of them and increases the risk of damage, or due to noise at certain times ( TS 27-11-08, EDJ 227743 ; TSJ Catalonia 20-2-12, EDJ 63769 ; 19-5-16, EDJ 75412 ; AP Barcelona 8-10-03, EDJ 138130 ).

There are various solutions that communities of neighbours can adopt to address the problem of tourist housing.

Clarifications

1) The tourist rental of apartments located in a community where the other owners have their habitual residence is a bothersome and dangerous activity, with the use of common elements by a large number of people being an abnormal use of the same ( JPI Granada 18-9-18, EDJ 576379 ).

2) The mere holiday rental cannot be considered a rental or tourist exploitation of a home and, therefore, its prohibition requires the unanimity of the community of owners and not a simple majority of three-fifths ( DGSJFP Resol 12-12-23 ).

Prohibition of activity

(LPH art.17.12)

Currently, communities of owners have the possibility of reaching agreements that limit or condition the exercise of the tourist rental activity. These agreements require the favorable vote of 3/5 of the total number of owners who, in turn, represent 3/5 of the participation quotas, regardless of whether or not they modify the constitutive title or the statutes of the community. The agreements made in this regard cannot have retroactive effects, that is, they cannot prohibit the activity to those who were already exercising it.

This relaxation of the majorities required to limit tourist rental activity has been in effect since 6-3-2019 . Until then, this type of restriction involved a modification of the statutes or the constitutive title which, as such, required the unanimous support of the entire community ( LPH art.17.6 ). This meant that if there was already a neighbour who was using a property for tourist accommodation or had the intention of doing so, it was practically impossible to reach an agreement against it.

Following this regulatory change, the question arises as to the scope of the expression ” limit or condition ” contained in the regulation, that is, whether the owners’ associations can, only with a 3/5 majority, prohibit, without just cause, holiday rentals, or whether they can only establish limits or conditions that the owner must meet in order to be able to use the property for this activity and, only in the event that these are not met, prohibit it.

In the absence of any jurisprudential pronouncement on the matter, it seems that the majority doctrine leans towards this second option:

• The community of owners can establish various limitations – such as, for example, that the occupants cannot remain in the common areas of the occupants, that the keys to the house or the entrance cannot be left outside the building for the future tenant to pick up, limit the number of users who can be in the house at the same time, etc. In any case, these must be conditions that have a benefit for the property and the rest of the residents and that imply a clear abuse of rights or that really imply an absolute prohibition of the holiday use of the house.

• However, the community, even if it reaches the qualified majority of the LPH art.17.12 , cannot directly prohibit one of the private properties from being used for so-called holiday rentals. A different thing is that, once certain conditions have been established for this, failure to comply with them, if it significantly affects the normal development of the community, may be considered a nuisance activity and be prohibited.

• Interpreting the limitation as an absolute prohibition would constitute an excess that would violate the rights of ownership derived from the right of the owner of the property, unless they were based on extra-EU regulations. The owners’ association could only prohibit use when the sectorial regulations did not permit the activity in the type, place or time of the building, so that in reality, nothing could be added to said regulation.

Clarifications

For the agreements adopted between 19-12-2018 and 23-1-2019 , RDL 21/2018 , repealed due to lack of validation in Congress, already established the flexibility of majorities currently in force, so those adopted during that period are fully valid and binding on the community ( LPH art.17.12 ).

Increase in quotas

(LPH art.17.12)

Another solution that communities can adopt is to allow tourist apartments but force their owners to pay special fees, or to increase the fees for participation in common expenses for the homes in which this activity is carried out. For adoption of these types of agreements , the favorable vote of 3/5 of the total number of owners, who in turn represent 3/5 of the participation fees, is required.

In any case, the increase cannot be greater than 20% of the fee that was previously being paid.

Legal action 

activities prohibited by the statutes in the flat or in the rest of the property , which are harmful to the property, the president of the community, on his own initiative or that of any of the owners or occupants, may require whoever is carrying out the prohibited activities to immediately cease them. If the owner or occupant continues to carry out the harmful conduct, the courts may be called upon to decide on the matter ( LPH art.7.2 ).

In relation to tourist housing, apart from the agreements that the communities may take to, in the future, prohibit the activity (nº 4254 ), the question that is raised in the courts with respect to those already existing, is whether dedicating these homes to tourist rental is a prohibited activity, analyzing the regulation in the statutes and their interpretation.

The position currently taken by the courts is to admit the restriction or prohibition of tourist apartments in a community of owners only when the constitutive title or the statutes contain a clear and express prohibition, which affects third-party purchasers and provided that the statutory prohibition is registered in the Property Registry. With such a prohibition, the community of owners is taking a preventive measure in order to avoid annoying activities.

( TS 27-11-08, EDJ 227743 ; TSJ Catalonia 20-2-12, EDJ 63769 ; 19-5-16, EDJ 75412 ; 13-9-18, EDJ 588930 ).

the autonomous communities have been regulating this matter to adapt it to the current situation and try to avoid, as far as possible, these conflicts that arise in the communities of neighbors.

Clarifications

Prior to this trend, it was interpreted that it was enough for the term “dwelling” to be used in the constitutive title or in the statutes of the community of neighbors to consider that the only permitted use of the apartment was for this purpose, as a residence or home and that, as such, it contradicted the tourist purpose ( TS 28-4-78, EDJ 127 ; 10-10-89, EDJ 8957 ; 23-11-95, EDJ 7017 ).

Autonomous regulation

Most regional regulations on tourist housing have adopted the current criteria of the courts, so that it is sufficient that there is no express statutory prohibition in this regard, in order to be able to grant an administrative license for the tourist use of apartments in a horizontal property regime.

• Aragon . Properties subject to the horizontal property regime must include in the responsible declaration, recognition that the statutes of the community of owners do not prohibit or establish restrictions on the use of the property for tourist housing purposes ( D Aragon 80/2015 art.14.2.f ).

• Canary Islands . In homes subject to the horizontal property regime, only those homes in which this activity is not expressly prohibited by the statutes of the community of owners can be marketed as holiday homes ( Canary Islands Decree 113/2015 art.12.2 ).

• Cantabria . In the case of homes located in properties subject to the horizontal property regime, a declaration is required stating that the statutes or agreements adopted by the community of owners do not prohibit or establish restrictions on the use of the property for the purpose of tourist use ( D Cantabria 225/2019 art.5 ).

• Catalonia . The owner of the property, or the person to whom he or she delegates, must provide the users with a document containing the rules of coexistence agreed upon by the community of owners where the property is located, if there is one. This document must be written, at least, in the following languages: Catalan, Spanish, English and French.

In the event that the user of a tourist home violates the basic rules of coexistence or fails to comply with municipal ordinances issued for that purpose, the owner of the property, or the manager of the tourist home, must require the transferee to leave the home immediately ( D Catalonia 75/2020 art.221.2.5 ).

• Galicia . The destination as a tourist dwelling is not possible if it is prohibited by the statutes of the community duly registered in the Property Registry in buildings subject to the horizontal property regime ( D Galicia 12/2017 art.41.5 ).

• La Rioja . A property cannot be used for tourist purposes when, where applicable, it is prohibited by the bylaws of the community of owners. In properties that form part of a community of owners, services and facilities that are complementary to the activity of accommodation or lodging and that are likely to cause inconvenience and harm to neighbours cannot be offered, and it is strictly forbidden to advertise and use the property for parties, events and the like ( D La Rioja 10/2017 art.67.1.2 ).

Clarifications

1) In other autonomous communities without express regulations on the problem of communities of neighbours, it is simply required that the owner of the tourist flat informs the users about the internal regulations of the community, in order to ensure that they comply with them, and that the common elements and facilities are used diligently and appropriately (e.g. D Andalucía 28/2016 art.7.5 ).

2) Finally, in contrast to the majority regime, in the case of the Balearic Islands an intermediate regime has been adopted. If the constitutive title or the statutes do not prevent the tourist marketing of the properties or these do not exist, it is necessary, in order to carry out the tourist marketing, an agreement of the board of owners. This agreement must be registered in the Property Registry, in order to inform third parties who may purchase the properties ( Balearic Law 8/2012 art.50.7 ).