SETTING UP B&B IN ANDALUCIA-TOURIST -CASA RURAL- AND RUSTIC RENT

HOW TO SETTING UP A BED AND BREAKFAST IN ANDALUSIA

There is a wide confusion around what a Bed and Breakfast (B&B) is, its concept, its regulation, its taxation, and its treatment.

1.- CONCEPT – WHAT IS A BED AND BREAKFAST (B&B)

It is a concept that has its origin outside of Spain. Historically it was a “lodging”, simpler, cheaper and familiar than a “Hotel”, where the guest literally slept , had breakfast, and sometimes ate, with the owners, even making use of the toilets and common services, And for a very limited time.

The services and comforts offered by the B&B were much more modest than those offered by a hotel , and also its price. For this reason it became very popular.

However, in Spain , this type of B&B has not historically been conceptualized in the same way . We can perhaps compare it with the historical “fondas”, or hostels, or “paradas”.

The truth is that today, the concept of ” quick stop with bed and breakfast ” has become standardized, especially due to the arrival of tourists and foreign visitors who have been demanding a similar service. And, what is more important, we find a large number of small investors who want to establish themselves in Spain and create a business similar to the B&B.

The idea that we see most widely in the market is from those foreigners who want to establish themselves in Spain and find a large and spacious home that allows them to live in it, while they can share it with future guests , thus generating a source of income. to help them financially in their new life in Spain.

However, what seems very easy and fast to achieve in other countries, in Spain it is much more complicated. The reason for this is that the accommodation service in Spain is increasingly regulated and controlled, and is subject to a regulated activity in the process of guaranteeing that the guest / tourist receives quality treatment and service when visiting Spain .

2.- WHY A BED AND BREAKFAST?

A Bed and Breakfast implies two services:

• Eat
• Sleep

As regards ” sleeping “, there is a wide range of types of accommodation service for tourists and guests in Spanish legislation that could be used as a means to offer “accommodation and bed” services:

• Seasonal rental : It is an apartment/house that is rented on a temporary accommodation basis, in which it can even be rented by rooms.

This type of rental is not subject to any license , registration, etc. requirements. It is simply necessary to formalize a seasonal rental contract in which the tenant enjoys the property for a certain time in exchange for a price.

In this type of rental, other services such as food, breakfast, room cleaning, laundry, etc. are not normally included.

As for its duration , this type of rental, as its name indicates, is usually “seasonal”. In other words, it would not be a traditional-style B&B in which there are usually short stays of one, two, or even up to 10 – 15 nights. But it is about stays of a medium-long duration up to ONE YEAR maximum .

In fact, in some regions of Spain, such as Andalusia, seasonal rentals of less than 30-60 days are considered “Tourist Homes” or “Tourist Rentals” and are subject to strict control, surveillance and limitations of the Tourist Homes or “Tourist Rentals”.

• Tourist Homes/Tourist Accommodations/Tourist Apartments/Tourist Rentals.

As we explained in the previous case, seasonal rentals, when they are for short stays (usually for periods of less than a month), and advertised on digital platforms such as Airbnb, Home Away, etc., are usually considered by the different regulations . as ” tourist accommodation “, and therefore subject to very strict mechanisms of control, surveillance, conditions, limitations, etc.

And this is where the confusion comes in. The regulation of tourist rentals and housing depends on regional legislation, and sometimes even local ones. For this reason, depending on the region, we find very similar names and concepts, but with different regulations and legal consequences, which are mixed together and give rise to a tangle of terms such as :

• “Tourist apartment”
• “Vacation home”
• “Tourist housing”
• “Tourist accommodation”
• Housing with “tourist license”
• Housing for tourism purposes (VFT)
• Rural accommodation tourist homes
• Rural Houses, Farmhouses, Cortijos, etc.

… And a long etc of different concepts of tourist accommodation that would offer “sleeping” services to tourists, with different regulations and specifications.

This type of accommodation is halfway between a “Hotel”, “Hostel” or “Pension “, and seasonal rental.

But, until now we talked about “sleeping”, but, as owners of the rented house, can we ” offer food” to our guests?

That question is difficult to answer.

From a legal point of view, and to be understood in a simple way, to offer “ food ” to our guests we need the same type of license as a restaurant, hotel, or cafeteria . And this complicates the activity a lot.

Why?

Well, because the restaurant service requires permits and business, health, environmental, and even food handling licenses , which are not always easy to obtain, or because the house does not comply with the legal parameters for This, or, simply, because the use of restoration is not allowed in that house, or in that urbanization, or in that area.

What each and every one of the regulations in Spain say is that, although in order to offer “accommodation” services, we can ” avoid” having to obtain an “activity license” or “restoration” at the time we offer ” food” to our guests, the owners of the establishments are forced to obtain said activity/restaurant activity license, which often involves complicated types of highly regulated and controlled housing.

In other articles on this site we have already talked about houses and tourist accommodation in Andalusia, but today we are going to talk about accommodation with “food” in the Andalusian region, both in urban and rural areas.

4.- DIFFERENCES BETWEEN RURAL HOUSE, RURAL ACCOMMODATION TOURIST HOUSES AND HOUSES FOR TOURIST PURPOSES IN ANDALUSIA

I.- HOUSES FOR TOURIST PURPOSES  – TOURIST APARTMENTS

 These are generally known as those apartments or houses, in urban areas, dedicated to rent for tourist purposes. We have discussed this type of housing extensively in our article:

 Housing for Tourist Purposes (Tourist apartment license) in Andalusia

 They are regulated in Decree 28/2016, of February 2, on housing for tourist purposes and the modification of Decree 194/2010, of April 20, on tourist apartment establishments.

 Despite what this regulation indicates, this type of rental can be developed in rural areas, as long as they are carried out in “urban” environments. With which, we understand that this type of rental cannot be authorized in houses or nuclei scattered in rural areas, outside urbanized areas or “rural nuclei” (“núcleo rural“).

 What are “rural nuclei” for Andalusian legislation?

 For these purposes, establishes art. 19 of Decree 550/2022, of November 29, which approves the General Regulation of Law 7/2021, of December 1, promoting the sustainability of the territory of Andalusia the following:

 Traditional “ rural nuclei ” legally established in rural areas that meet the following requirements also form part of the urban land :

•  That they have a road access that allows, at least, the normal transit of people and motor vehicles in non-adverse weather circumstances, in addition to the following services:

1. 1. Supply of drinking water through the public network, individual wells or community cisterns that have a sanitary guarantee of their suitability for human consumption.
   2. Purification of wastewater through the public sanitation network or an approved system authorized by the competent Administration for discharges.
   3. Electrical energy through supply distribution networks or through energy self-supply facilities.

• That they serve as support, in the terms of article 23, for an urban settlement , singularized, identifiable and, where appropriate, administratively differentiated.
• Those traditional rural nuclei that are not on public domain land and that were originally established in accordance with the legislation in force at the time or prior to Law 19/1975, of May 2, of reform of the Law on Land Regime and Urban Planning.
• The classification of traditional rural nuclei as urban land requires their prior delimitation by the instruments of general urban planning . Its delimitation will be carried out by drawing a perimeter line on the basis of the existing parcel, taking into account the proximity of the buildings, the relationship and coherence between places in the same area with a differentiated place name, whether they are nuclei or other population entities, and the morphology and types of buildings and traditional plots.

And what are “disseminated nuclei in rustic “?

In this regard, Decree 550/2022, of November 29, which approves the General Regulation of Law 7/2021, of December 1, promoting the sustainability of the territory of Andalusia considers, in its art. 23 as “ habitat diseminado rural  ” the following:

3. In accordance with article 14.2 of the Law, the areas of scattered rural habitat constitute a territorial area on which a set of buildings without an urban structure and linked in their origin to agricultural activity and the rural environment are located, whose characteristics should be preserved. . The disseminated rural habitat constitutes a settlement of a non-urban nature on rustic land and to preserve these characteristics, the planning instruments may not delimit areas, nor propose a planning for them, which implies a density greater than three dwellings per hectare .

 This type of housing, in rural areas, can only obtain a license for tourist rental, but they will not be able to obtain the qualification of “Rural Accommodation”, therefore, they cannot benefit from its regulations, nor from the privilege that comes with having this badge.

 This type of housing can be dedicated to residential use, or tourist use, and can be implemented on residential land that allows tourist rental.

 II.- HOUSES AND TOURIST APARTMENTS

 They are regulated by Law 13/2011, of December 23, on Tourism in Andalusia

 These are apartments, apartment blocks, and tourist complexes, whose service, offer and infrastructure is exactly the same or similar to that of hotels.

 Tourist use is “exclusive”, therefore, as the law says ” tourist accommodation establishments, as well as the accommodation units that are part of them, will be affected by the provision of the tourist accommodation service object of registration in the Tourism Registry of Andalusia, being prohibited during its validity to allocate them to a different use, under any title.

 Therefore, this type of activity can only be carried out on land that is specifically allowed for hotel or tourist housing/apartment use.

 For these purposes, Decree 550/2022 establishes the following concept of tourist use :

 b) Tourism , which includes the detailed uses of tourist accommodation establishments and activities with an impact on the tourism field (sports activities carried out in ski resorts, golf courses, marinas, polo fields or others, activities aimed at leisure, entertainment and recreation such as theme parks, water parks, zoos or botanicals, resorts and spas and the like)

 These establishments, in addition to being conditioned to their development by the urban regulations for the use of the land in which they are located, will be subject to the same criteria of quality and service guarantee as the hotel service. In this sense, it is included in art. 35 of the 2011 Law:

 “… they must meet the minimum infrastructure requirements, those established in terms of safety, those related to the environment, those related to occupational health and safety in compliance with the regulations on occupational risk prevention, as well as, where appropriate , those required by other applicable regulations. Within the scope of their authorization and control procedures, the municipalities will require proof of compliance with said regulations when processing the corresponding licenses, if applicable.”

 In addition, they must be registered in the Andalusian Tourism Registry . For its registration it will be required (arts. 37 et seq. ).

 They will be governed by the principle of ” exploitation unit “, that is, it supposes the affectation to the provision of the tourist accommodation service of all the accommodation units that are part of the building, or an independent and homogeneous part of it, occupied by each establishment, the management of the whole being exercised by a single owner company.

As we say, it is expressly prohibited to use the accommodation units for a use other than tourist accommodation, whether residential or otherwise.

They may be constituted under the Horizontal Property regime, provided that each and every one of the individualized dwellings remains affected to the exploitation unit and to the condition of its use for tourism.

III.- RURAL ACCOMMODATION

They are regulated both by the Law of 2011 , and by DECREE 20/2002, of January 29, on Tourism in Rural Environments and Active Tourism.

 1.- TYPES OF RURAL ACCOMMODATION

For these purposes, the 2002 Decree considers rural accommodation to be the following:

Accommodation establishments in rural areas may specialize in one or more of the following specialties:

1. Agro-tourism . Accommodation in an active farm, in which, as a complementary activity, the tourist can participate in traditional tasks typical of the farm.
2. Albergue (Hostel) . It is a facility for short stays and is basically aimed at a specialized user, interested in learning about the region, nature or local ways of life.

Its main purposes are to welcome visitors and promote public use and the natural values of the environment. Additionally, it can support environmental education or similar activities.

They will have the following:

• Kitchen facilities for users, without prejudice to being able to also offer meals and other services.
• Triple rooms or multiple occupancy rooms with two-bed bunk beds will be allowed in them, up to a maximum of eight beds per room and at a rate of one bunk-bed with two beds for every 4 m of room surface.
• Sanitary facilities can be collective, but separated by sex, with a ratio of one sanitary device (toilet, shower, and sink) for every 7 beds.
• They will also have rooms for common social use, at a rate of a minimum of 1.5 m for each regulatory space.

3. Aulas de la Naturaleza (Classrooms of Nature) . Accommodation with equipment intended for essentially educational purposes and the enjoyment of Nature, aimed at isolated visitors and organized groups, schoolchildren in most cases, where activity programs are carried out during short stays.

The services provided by this facility are related to the interpretation of natural processes, environmental education and activities related to the Natural Space itself.

In addition , these centers must be equipped with the necessary facilities to provide accommodation and maintenance services to the users.

4. Casa Forestal (Forest house) . Establishment isolated in a forest area and functionally linked to the exploitation of the forest, reservoirs or fish resources in inland areas.
5. Casa Molino (Mill house). Isolated establishment and located in a building that preserves the traditional facilities, machinery and mechanisms typical of grinding work.
6. Cave-houses. Model of a troglodyte dwelling excavated in soft and impermeable materials from rocky areas. Up to 50% of the usable surface area in traditional construction is admitted, ensuring adequate direct ventilation in rooms without exterior windows.
7. Chozas y Casas de Huerta (Huts and Orchard Houses) . Isolated houses, made of simple materials, with characteristic roofs made of beams, reeds, reeds, sticks, interwoven vegetable fibers or Arab tiles.
8. Cortijo – Farmhouse . Construction that serves or has served as a management center for a medium or large farm, generally corresponding to the type of house-patio, with a central space around which the different units are distributed, presenting a traditional constructive and ornamental typology. .

It is generally smaller than the haciendas and with a greater simplification in its dependencies.

9. Farm-school. Accommodation establishment with complementary services aimed at bringing people closer to rural life through the practice of activities typical of a farm, such as horticulture, agri-food and craft workshops, livestock and care of domestic animals, and generally intended for children’s groups and juveniles.

As for the accommodation, by default the figure of hostel is presumed.

1. Hacienda . Set isolated in the field of buildings for residential and agro-industrial use of a certain architectural complexity and large dimensions, located in large farms and mainly olive groves. The complex is structured around a large central courtyard, with facilities for agro-industrial transformation such as oil mills, cellars or stables, as well as housing for the owners and employees.
2. Refugio (Shelter). Roofed structure that is created to provide shelter and allow rest or overnight stays for one or several days, generally on routes that are difficult to practice, and to cover the continuous demands of visitors in mountain, high mountain and other isolated areas or areas with difficult accessibility. . The electricity supply waiver and road access will be applied.
3. Alojamientos especiales (Special accommodations). All those facilities dedicated to accommodation whose characteristics do not allow them to be included in any of the specialties listed in this Annex belong to this specialty. These accommodations will require a special authorization from the General Directorate of Tourism Planning and their respective advertising must clearly and fully expose their special characteristics .

2.- CASAS RURALES (CR) – RURAL HOUSES

What is a Rural House? As provided for in art. 47 of the 2011 law.

“1. Rural houses are those buildings located in rural areas that have special characteristics of construction, location and typicity; They provide accommodation and other complementary services, and are registered as such in the Andalusian Tourism Registry under the terms established in this Law.

And, according to the Decree of 2002, in its artr . 15, defines “Rural houses” as:

1. Rural Houses are understood as the buildings referred to in article 41.1 of Law 12/1999, of December 15, on Tourism, which meet the following requirements:
2. a) In the case of independent dwellings, including dependent buildings such as tool rooms, stables, sheds or others of a similar nature.
3. b) In no case should there be more than three dwellings in the same building.
4. c) Do not exceed its accommodation capacity of twenty places.

WHAT IS MEANT BY “RURAL ENVIRONMENT”

 According to Article 3 of the Decree of 2002, it is understood as ” Rural environment “:

• For the purposes of this Decree, rural areas are understood to be those in which agricultural, forestry, fluvial fishing and livestock activities are predominantly carried out.
• They will not have the consideration of rural environment :

a) The protection zones of the highways and their areas and service zones according to the provisions of Law 8/2001, of July 12, on Andalusian highways.

b) Population centers located on the Andalusian coast.

c) Population centers that, according to the updated census, exceed twenty thousand inhabitants.

d) The areas close to factories, industries, landfills, facilities or activities included in Annexes I and II of Law 7/1994, of May 18, on Environmental Protection, that cause polluting effects, noise or inconvenience that affect tourists. . By Order of the Ministry of Tourism and Sports, the distances of such areas will be specified.

URBAN LIMITATIONS:

In the event that the rural house is established on land classified as undevelopable , the registration in the Andalusian Tourism Registry is understood without prejudice to its prior processing as ” action of public interest ” in accordance with the applicable regulations.

REQUIREMENTS:

The rural houses must be equipped with the following facilities and equipment, according to their category, which must be maintained at all times in a good state of conservation and operation:

1.- Basic category:

A) Non-shared accommodation establishments, in which there will be a responsible person who will take care of the replenishment of water and fuel, if applicable, and the good condition of the facilities, through periodic visits, and whose name, address and telephone number will be made known. of the users.

a) Lounges and dining rooms: Dining room suitable for the maximum capacity of the establishment, duly equipped for its use. Its size will be related to the regulatory capacity, with a minimum area of 12 m that can be divided between two rooms.

If the period of operation includes the months of October to April, both inclusive, they will be equipped with heating capable of reaching and maintaining an ambient temperature of 19ºC during use.

The furniture and decoration must reach an optimal level of adequacy with respect to the Andalusian rural aesthetics.

b) Kitchen:

It will have sufficient surface area depending on the accommodation capacity, and must be equipped with a kitchen with several burners, oven or microwave, refrigerator, crockery, cutlery, glassware, cooking and cleaning utensils.

Sink and drainer with hot and cold running water.

It will have direct or forced ventilation for air renewal and smoke extraction.

c) Bedrooms:

1. The minimum area of the rooms will be 7 m for single rooms, and 10 m for double rooms. For each  additional space you must have an additional 4 m. The area used for the terrace and that occupied by the bathroom are excluded from the computation, while that occupied by closets may be included embedded.
2. The furniture in the rooms must have, in any case, bedside tables and one bed per square of at least 90 x 180 cm if it is single, or 135 x 180 cm if it is double. The mattress will be highly rigid, not allowing the use of wool or foam mattresses.
3. A wardrobe for every four beds, with an adequate number of hangers, which can be located in any of the bedrooms.
4. Point of light next to the bed.
5. The minimum free height of the ceilings will be 2.00 m. In rooms with sloping ceilings, at least 70% of the room surface will have this minimum height.
6. Lighting and ventilation will be direct to the outside or to adequately ventilated patios. The ventilation hole will have a size appropriate to the volume of the bedroom, not allowing the use of assisted ventilation systems. The windows will be equipped with blinds , blinds or curtains.
7. If the period of operation includes the months of October to April, both inclusive, they must have heating capable of reaching and maintaining an ambient temperature of 19ºC during use.
8. Access to them will always be from common elements. In no case can it be accessed through another room.
9. You will have adequate bed linen for the number of occupants, at the rate of one game per week.

d) Hygienic services:

• They will have a full bathroom for every 6 beds or fraction thereof, equipped with hot and cold water, and equipped with a sink, bathtub or shower, and toilet. It must be located in the same building body as the rooms.
• It will be equipped with a mirror, towel rack, coat rack and shelf for toiletries.
• The flow of hot water available must ensure cleanliness, including showering, for all users for one hour.
• They will have direct or forced ventilation.
• It will have adequate bathroom linen for the number of occupants, at the rate of two games per week.

B) Shared accommodation establishments. The following additional requirements are established:

• The furniture in the rooms must have a chair for every two seats, a small table, and its own closet.
• The existence of a kitchen according to point b) above available to customers is optional.
• The bathroom must be for the exclusive use of the clients. Must have half tub and bidet.

2.- Superior category:

A) Non-shared accommodation establishments.

In addition to the requirements established above, they must meet the following:

a) Lounges and dining rooms:

• Minimum size 15 m + 2 m for each person from the third.
• Heating capable of maintaining a minimum temperature of 21º C.

b) Kitchen:

• It must be independent from another room, although a kitchen-dining room is admitted if there is an independent and separate living room.
• Kitchen with four burners, oven or oven-microwave, washing machine.

c) Bedrooms: 1. The minimum area of the rooms will be 10 m for single rooms, 14 m for double rooms, and 18 m for triple rooms.

• The minimum size of the beds will be 190 x 90 cm for singles, and 190 x 140 cm for doubles. Neither sofa-beds nor bunk beds are counted as beds.
• The furniture must have a wardrobe per room, a half-length mirror, a chair or armchair per person, a writing table and decorative elements.
• Heating capable of maintaining a minimum temperature of 19º C, with a temperature regulation system.

d) Hygienic services:

• The minimum bathing area will be 3.5 m
• It must have a complete bathroom (bathtub, bidet, toilet and sink) for every four beds.
• The amount of accumulated hot water is established at 20 liters at 90º C multiplied by the number of occupants, or in continuous flow (butane heaters and the like).
• Heating.

e) Other conditions:

• Ambient heating for the entire building with fixed installation, capable of simultaneously maintaining a minimum temperature of 19ºC throughout the building and 21ºC in the living area, with a temperature regulation system.
• Electrical installation at 220 V according to REBT, fully embedded and grounded.
• Special attention to environmental issues, such as waste, thermal insulation and saving energy and water, with concrete measures to reduce their impacts.
• Predominance of natural materials and elements
• traditional in construction, decoration, furniture and equipment.

B) Shared accommodation establishments. The following additional requirements are established:

• Living area , for the exclusive use of clients.
• If there is a kitchen available to clients, it must be different from that of the owner.
• The ingredients to prepare breakfast will be made available to clients.
• All rooms must have a complete bathroom (bathtub, bidet, toilet and sink), integrated into the room. A shower, toilet and sink are sufficient if there is also a common bathroom with a bathtub.

3.-  VIVIENDAS TURÍSTICAS DE ALOJAMIENTO RURAL – RURAL ACCOMODATION TOURIST HOUSES – VTAR

According to art. 48 of the law:

1. Rural accommodation tourist houses are those located in rural areas where the accommodation service is provided, and which are offered to the public, for temporary or occasional use, for tourist purposes, one or more times throughout the year. anus.
2. Rural accommodation tourist houses must be furnished and have the necessary equipment for immediate use.

 And according to Decree 2002, Article 19. Tourist houses for rural accommodation.

1. Rural accommodation tourist houses are those that meet the following requirements:

a) In the case of independent dwellings, including dependent buildings such as tool rooms, stables, sheds or others of a similar nature.

b) Be offered to the public for temporary or seasonal use or be occupied occasionally, one or more times throughout the year.

c) Only provide the accommodation service.

d) In no case should there be more than three dwellings in the same building.

e) Do not exceed its accommodation capacity of twenty places.

They must be furnished and have the necessary equipment for their immediate use. The minimum infrastructure requirements of rural accommodation tourist homes will be those established in Annex II; its specific prescriptions will be, at least, those established in Annex III for the basic category of rural houses.´

SOME ASPECTS TO CONSIDER BETWEEN THE DIFFERENT TYPES OF TOURIST ACCOMMODATION

 1.- MAXIMUM EXPLOITATION TERM:

Focusing on the different types of accommodation for tourism analyzed, we will begin by pointing out that the Casas Rurales-CR and the Viviendas Turísticas de Alojamiento Rural – VTAR are two types of rural accommodation that have common aspects, but also some very important differences.

Although both types of accommodation are required to comply with the requirements contained in Decree 20/2002 of January 29 on Tourism in Rural Environments and Active Tourism (Annex II and III), from a legal and fiscal point of view they do not have the same treatment . And in the same way, the VFTs have a different treatment, for tax purposes, than the CRs.

A relevant difference between the RC and the VFT with respect to rural accommodation tourist housing (VTAR), is that the latter is imposed a maximum annual period to rent it for tourism purposes . Already in Decree 20/2002 it is required that said annual opening period must be communicated. However, this Decree does not specify the time limit, although it does state that it must be less than a year, collecting article 19 that “their temporary or seasonal use, or be occupied occasionally, one or more times throughout the year ”. This generic limitation is later specified in Law 13/2011, of December 23, of Tourism of Andalusia (BOJA no. 255, December 31), in its article 48.1, where the maximum period of exploitation is established, noting that It may be more than three months in the whole year.

For CR and VFT, as has been indicated, there is no temporary limitation on rent.

2.- SERVICES OFFERED:

With respect to the services that these accommodations can provide, it is necessary to differentiate the fact that in Rural Tourist Accommodation Housing and VFT only the strict accommodation service can be provided (Law 12/1999, Decree 20/2002, Law 13/ 2011 of December 23 and Decree 28/2016, of February 2).

In the case of Rural Houses , on the other hand, in addition to the accommodation service, some other complementary service must be provided, such as tourist information, laundry, breakfasts, meals, active tourism activities, etc.

3.- OBLIGATION TO PROVIDE TOURIST INFORMATION

The VFT must have available and will offer “tourist information, in physical or electronic support, of the area, leisure areas, restaurants and cafeterias, shops and food stores, the closest car parks to the home, existing medical services in the area, means of urban transport, map of the town and guide to shows”. In other words, it is an obligation.

However, the 2002 Decree establishes that, for VTRs, this service will be “complementary” and therefore not mandatory.

4.- PLACES

 The VFTs may be rented complete or by rooms , and in no case may they exceed 15 beds in the first case, and 6 beds in the second.

However, in what refers to the rural houses , and the VTAR , a maximum of 20 places is established , but in both cases there cannot be more than 3 houses in the same building that are rented.

5.- TAXATION AND TAX ASPECTS

We have to say that we cannot establish an adequate tax regime for each of the CR, VFT and VTAR options. From the point of view of the Spanish administration, there is a broad interpretation of the different cases, so we can find totally different cases and decisions for the same case, and sometimes even contradictory ones.

For this reason, the fiscal planning of the project will depend on each case, and on the personal circumstances of each of the owners of these establishments. For this reason, we especially advise you to consult a tax specialist to study your case and individually plan your project.

In the preamble of Decree 28/2016, it establishes that the accommodation service activity for both VFTs and VTARs is not the main activity of the owner, and therefore, is not the main source of income. This Decree establishes that, in the case of RCs, the accommodation activity does represent the main activity of the owner.

In addition, the very essence of the period for carrying out the activity in the case of VTARs, in which the service is limited to 3 months a year, is totally incompatible with a business service.

On the other hand, Law 13/2011, art. 41, when referring to the principle of unity of operation of tourist accommodation establishments included in art. 40 (Tourist Housing), among which is the Rural House, when dealing with the issue that this accommodation must be operated under the principle of exploitation unit, citing in its text the terms “operating company”, “company that manages” , etc., it is evident, in principle, and therefore, in the wording of the same that the exploitation of a Rural House is considered a business activity.

In summary, it can be concluded that the accommodation activity in a Rural House is considered a business activity, because it is considered a main activity of the owner or operator and must provide some complementary service to the accommodation; The rental for tourism of a VTAR and a VFT is not properly considered as a business activity, but rather as the exploitation of real estate, the income from which is considered income from real estate capital and must thus be declared in the annual income tax return .

6.- LABOR AND SOCIAL SECURITY OBLIGATIONS

In parallel with the fiscal aspects, regarding labor and social security obligations, it also differs from one another:

• Tourist Homes and Rural Houses: For the development of the accommodation activity in Rural Houses, as it is a business activity, registration with the Social Security of the owner or operator in the special regime of self-employed workers (autonomous) is required.
• VTAR: These obligations are not required for the owners of the exploitation.
• VFT: In principle, this type of obligation is not required either.

But, nevertheless, as we say, it will be necessary to be aware of the specific assumption, since it may happen that there are VFT holders who have several active properties, with a person in charge employed for management or maintenance, and that this is considered a business activity that requires registration in the self-employed or company regime; and it may be that a RC holder carries out his exploitation without this being his main activity, that he does so sporadically and that it is not his main source of income.

7.- VAT

As we have been recalling in other articles on our site, with regard to the subjection to VAT on tourist rentals, Law 37/1992 itself establishes that leasing is exempt.

But, in the event that additional cleaning, catering, laundry services, etc. , typical of hotel services, are provided, this type of service will be subject to VAT at 21%.

In this case, we are going to put some examples of casuistry:

Example 1.- The owner receives as payment the rental price of the home (whether under the CR, VFT or VTAR regime). This payment does not carry VAT.

Example 2.- The owner, in the case of VFTs and CRs, provides transportation, laundry, etc. In this case, you must issue an invoice for these complementary services with VAT.

Example 3.- The owner transfers the rental activity to a third party, for example, to a company that is going to exploit the rental exclusively in exchange for a remuneration agreed with the owner. In this case, the owner must issue a VAT invoice for the “transfer of exploitation” service and will carry 21% VAT. In this case, the company that manages the rental must issue an invoice without VAT to the guest. It will only invoice with VAT for the complementary services of washing, cleaning, maintenance, transport, etc. , and it will do so with a 10% VAT (VAT on the hospitality industry).

Example 4.- The owner rents the house through a portal or intermediary agency. In this case, it is the owner who rents directly to the end user. The owner will issue an invoice without VAT, and only in the case that complementary services of the hotel industry are provided, 10% VAT will be added.

The intermediary agency ( Booking , Airbnb, or real estate agency), will issue an invoice with VAT at 21% (the general VAT on services)

What does “additional services of the hotel industry” mean?

The Spanish VAT Law in its article 23 establishes that:

“Complementary services are considered to be restaurant, cleaning, laundry or other similar services”

On the other hand, the doctrine of the DGT in several of its binding consultations, includes that

“the lodging activity is characterized, unlike the housing rental activity, because it normally includes the provision of a series of services such as reception and permanent and continuous attention to the client in a space designated for that purpose, periodic cleaning of the property and accommodation, periodic change of bed and bath linen, and provision of other services to the client (laundry, luggage storage, press, reservations, etc.), and, sometimes, provision of food and restaurant services”.

On the contrary, the following are not considered complementary services typical of the hotel industry:

• Cleaning service of the apartment provided at the entrance and exit of the house
• Linen change service in the apartment provided at the entrance and exit of the house.
• Technical assistance and maintenance services for eventual repairs of plumbing, electricity, glassware, blinds, locksmith and electrical appliances.

 8.- TAX ON ECONOMIC ACTIVITIES – IAE

We do understand that the exploitation of Rural Houses and VTAR must be registered in the IAE, since they have a specific framework in the nomenclature.

However, for VFTs, in the event that they are exploited in a non-business manner, we consider that it would not be necessary.