Tourist Rent

Table of Contents

Table of Contents

Concept

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

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

– that which is transferred in its entirety (or  by parts, depending on the region) on a temporary basis;

furnished and equipped in conditions of immediate use;

for profit; and

– under the conditions established in its own sectoral regulations.

Likewise, as an essential and defining characteristic of this type of lease, it is necessary that the property is marketed or promoted in a tourist supply channel or in any other way.

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.

Related figures

There are many tourist or holiday products that are similar to renting homes for tourist purposes. On the other hand, there are modalities regulated in some regional regulations that in other autonomous communities could be framed as housing for tourist purposes. Below are some examples of these related figures.

Tourist apartment

Tourist rent differs from tourist apartment in in that this last refers to a “commercial”  property owned by a proffesional who rents it  professionally,which are part of a tourist exploitation. while tourist rent is a type of non-hotel accommodation in residential properties.

Lodging

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

It is a contract in which the lease of a property is combined -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.

This contract regulates the relations between the entity or person that provides accommodation services and the client who seeks to provide the services  on a purely temporary and transitory basis, without there being an intention to constitute the accommodation as their habitual residence.

It is a contract not regulated in civil law, therefore subject to what the parties may agree on it (CC art.1255).

Its duration is limited in time by its very nature. The accommodation does not allow the unlimited perpetuation in time of use in favor of the guest.

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 length of the stay may be extended or modified if there is an agreement to this effect.

Timeshare of properties for tourist use

The assignment of accommodation of dwellings for tourist purposes are not timeshares or contracts for timeshare rights.

The timeshare contract for tourist accomodation has a duration of more than one year and, by virtue of it, a consumer acquires for consideration the right to use one or more accommodations to stay overnight for more than one period of occupation.

Apart-hotel (Apartments  with hotel services)

 The apartment with non-hotel services is one that is offered for both  short-term and long-term periods of accommodation, providing customers 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 those of the hotel accommodation units, in terms of available services, with those of the residential apartments, which are usually larger and with their own facilities such as kitchen, laundry room or living room.

Cession of Use Contract

Tourist rental contracts for housing are usually implemented 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 same.

Each of the parties has different legal and contractual obligations and therefore their liability regime is also different.

Parties

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

Owner or manager of the property

Its the owner of the property registered as a home for tourist purposes. It may happen that other people have rights over the property that entitle them to use it, such as a usufructuary.

The owner or usufructuary of a dwelling is not necessarily the manager of the dwelling, but may assign the use of the dwelling to another person or entity so that this in turn can transfer it as accommodation to third parties.

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

  • Organizes the means for the provision of accommodation services in the home for tourist purposes.
  • Offers and provides the accommodation service, contracting with clients and authorising them to access the property and stay in it under the agreed conditions.

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

In addition to contracting marketing channels, the owner or operator of the property for tourism purposes often chooses  to outsource all or part of the tourist services they offer to customers, in such a way that third parties provide them. Among the services that are most commonly contracted are security, laundry, cleaning and maintenance of the home.

In the declaration of responsibility, it must be indicated that the exploitation or management is carried out by an operator or manager, having an enabling legal title for this purpose. In the event that the name of an operator is not communicated to the competent Administration, it is presumed that the owner of the dwelling is also the one who operates it, being responsible to the Administration and the users for the correct provision of the service, even if in practice he does not do so.

User, guest or tourist

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

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

Booking/Reservation contrat

 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 price agreed for it.

It is a preparatory contract for  the transfer of use contract, so 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 customer, although it is also very normal for the reservation to be agreed between the marketer and the customer.

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

Consultation through the website

 Conceptually, the reservation of accommodation arranged with the owner of a home that operates through a website does not have any legal difference with the reservation contracts analyzed, without prejudice to the fact that the contracting is electronic.

However, users who access online platforms do sign a contract directly with these platforms that is not a contract for booking accommodation.

The most well-known platforms offer their services in accordance with general terms and conditions of contract agreed directly between them and the users who visit the website, in which it is made clear that the services provided by the online platforms  consist of the creation of:

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

– Online marketplaces that allow providers of accommodation or event services to publish these services and registered users to access them, and direct communication is established between them to manage reservations.

Rights and obligations

 The rights and obligations of the parties depend on the provisions of the assignment contract, as well as on the applicable regional administrative regulations. Among the rights and obligations that can be pointed out as the most common, the following should be highlighted:

Rights

 The owner or manager has the following rights:

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

– Other rights are: prohibiting access to the property to clients who do not pay for the 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 period.

For their part, the user of the dwelling has the following rights:

– as the main right, to enjoy the dwelling for the purpose of serving as temporary accommodation as well as the common areas of the establishment where the dwelling is located, where appropriate;

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

 Obligations

Among the obligations of the owner or manager can be distinguished:

  • A main obligation is the temporary transfer of furnished and equipped accommodation in conditions of immediate use.
  • Other ancillary obligations, which are:

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

– provide information regarding any regulations applicable to the service;

– compensate for damages suffered by the guest or their property if there is fault or negligence; and

– To guard money and valuables as a depository, as long as the service is offered or safes are set up for this purpose.

The regional tourism regulations regulate in detail the additional tourist services that the assignees have to offer. Thus, for example, the marketer of tourist stays in residential homes has to guarantee the periodic cleaning of the home, before the entry of new customers or during their stay or the supply of bed linen, linen, etc.

The main obligation of the user is to pay the agreed price for the transfer of the temporary use of the property as well as any additional supplement or service.

Likewise, other obligations are:

– provide the operator of the dwelling with his name and that of the persons staying with him in the dwelling;

– Surrender 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 home 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 origin of the obligation to compensate the complying party for the damages caused.

Failure to comply gives rise to contractual liability with the obligation to repair the damage caused (CC art.1101).

The possible breaches of the user are the following:

– non-payment of the price;

– lack of diligence in the conservation and maintenance of the home, its furniture and facilities;

– Failure to comply with the rules of coexistence of the building where the tourist accommodation is located; and

– Lack of identification.

Failure to comply with the obligation to pay, if it takes place prior to entry, as is customary, or the refusal to identify oneself, entitles the transferor to refuse entry and possibly to withhold any deposit, depending on the terms that have been agreed.

The lack of diligence in the conservation and maintenance of the dwelling generates in favour of the transferor the right to be able to claim for the damages suffered against the user.

But where the possible breaches generating liability are accentuated is from the perspective of the assignor, who must respect the contractual obligations, many of them legally imposed by the sectoral regulations. In these cases, the user can claim for the damages caused, as well as file the corresponding complaints with the consumer and tourist authorities.

There are several regional regulations that impose on operators and entities that market housing accommodation for tourist purposes, the obligation to take out insurance to cover civil liability for bodily or material damage that may be suffered by users of the dwellings during their stays, as well as, in the case of dwellings subject to the horizontal property regime,  that covers the damage that may eventually be caused by users to the community of owners.

Marketing

The marketing or intermediary company 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 the managers or owners and the management of reservations. It does not provide accommodation services as such, but 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 tourism offer, as well as the concept in which it is carried out. Existing standards use different terminology and even concepts.

Marketing agent

There are different forms of marketing and promotion of housing for tourist purposes.

Online marketing platform

Online platforms  promote the commercialization of stays in homes for tourist purposes through the internet with the aim of creating a meeting point between suppliers and demanders of these 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 marketing on the Internet establish in their terms of service to the owners or operators of the dwellings that these companies provide a service of a 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 sectoral regulations falls on the owners or operators of the homes.

Online platforms  are currently not regulated, except for the intention of tourism regulations to consider them marketing companies or channels of tourist offer and thus force them to be registered in the respective tourism registries of each autonomous community.

The platform normally provides additional services to bidders and demanders, such as:

– control and quality of the products offered;

– collection and payment services for bookings and stays;

– procedures for liberalizing payments to bidders;

– customer service in case of irregularities and even insurance.

For all the services provided by the platform, it charges a commission that is a percentage of the amount of each reservation. Several 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 customer. 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 minus the commission to the operator of the property, the platform itself usually issuing a receipt in favor of the client.

On many occasions, the platforms also collect and settle local taxes linked to tourist stays.

The platforms also offer within their services the arrangement of insurance  that covers the risks of temporary transfer whose beneficiary 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 the theft of money, jewellery or works of art or elements of a certain value,  nor small damages.

The Administration cannot force a platform, which acts as a mere intermediary for tourist rentals, to control compliance with administrative requirements by its users.

The platform only acts as a technological platform with a neutral position, as it is limited to publishing advertisements of its users, being the ones who determine the information and content of the same.

Nor can it be considered a tourist company, since not all accommodations have a 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 responsible for any breaches by third parties.

Its activity is intermediary, typical of the information society, and is regulated by Dir 2000/31/EU and L 34/2002, both regulating information society services and electronic commerce, and not by sectoral legislation on tourist accommodation.

Moreover, the fact that it not only publishes advertisements for tourist accommodation, but also others that would not be subject to that obligation, and the nature of the intermediation services, the services of which are merely ancillary to the underlying activity, preclude the omission of certain administrative requirements by advertisers from being regarded as a flagrant illegality requiring the platform to remove its advertisements (TS 30-12-20, EDJ 767228).

Platforms usually have terms, conditions and policies that providers and applicants must agree to accept and respect, in such a way that it is these platforms that determine the contractual content of the transfer of the use of the rooms.

In the marketing of temporary assignments to customers, online platforms  usually include in bookings  concepts such as:

– Deposit or deposit in favour of the owner, to cover small damages – the amount is usually established by the owner;

– cancellation options for the guest;

– penalty for the owner if you cancel;

– discounts and promotions, such as the existence of credits for referring customers 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’s software that allows operators to offer and customers to search and find the accommodations that best suit their needs.

Regarding the liability of marketing companies:

– when they promote on behalf of third parties they play a similar role to retail travel agencies with respect to hotel accommodations; and

– If they act in their own name, they work in a similar way to that of wholesale travel agencies. The reality, however, is that marketing companies that promote in their own name are liable to customers for breaches in the transfer of accommodation, insofar as they are the ones who operate and exploit the homes they market.

The regulations on travel agencies and package holidays provide that both the wholesale organiser and the retail travel agency with which it is contracted are responsible for the correct fulfilment of the obligations arising from the package travel contract, regardless of whether these must be carried out by them or by the different service providers – hotels,  carriers, etc.

Tourist Housing Manager

 The managers market and directly provide accommodation services in homes for tourist purposes, not necessarily their own, but with a title that enables them to operate the accommodation.

They are, therefore, companies that operate these homes and offer accommodation services to customers. The main difference with platforms is that these managers are not intermediaries, but directly provide tourist services to customers.

However, managers can operate their own websites  and applications, as well as they can use platforms as a means of publicizing their activity.

The managers do not charge a commission, but receive a price 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 both types of accommodation can be accessed through their systems and websites. 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 the management of these services is carried out by personnel and servers located there.

These companies carry out activities ancillary to the activity of the company that acts as  an online platform.

These ancillary 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 these 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 customers have staying in them, etc.-.

Other Marketers

 The regional tourism regulations define tourist supply channels as any system by which natural or legal persons, directly or through third parties, market, advertise or facilitate, by means of a link or accommodation of content, the reservation of tourist stays in homes for tourist purposes.

Within this definition there are many entities that can also market stays in homes for tourist purposes. These include, among others, travel agencies, reservation centers, mediation companies or organization of tourist services, real estate agencies; as well as the insertion of advertising in social media, whatever its type or medium.

  1. Other Contracts

Other contracts that can be given between the owner of the property and the intermediaries in a transfer of use are those set out below.

Marketing contract

 The contract for the marketing of housing for tourist purposes is configured as a service and mandate contract  in which the provider of the accommodation services entrusts a third party with the promotion of the same.

In addition to making advertisements and offers on online platforms, the tasks of marketing stays are usually contracted. The intermediaries, for a commission, are responsible for promoting them using their own means in order to sell them, while their role is limited to acting as agents or intermediaries, concluding the accommodation contract between the owner or operator and the end user.

Marketing can be on  an exclusive or non-exclusive basis.

The role of marketer can be assumed by a variety of subjects, such as real estate companies, wholesale or retail travel agencies, property agents, commission agents, telemarketing service providers, etc.

Management contract

 The owners are not always the operators of the homes but they transfer the use of them to third parties to operate them. These transfers of use can take three main variants :

  • Assignment for a certain period, with the manager assuming the obligation to pay a fixed income to the owner during that period, in such a way that all the risk of the activity is assumed by the manager.
  • Transfer of use of the home for a certain period, with the manager assuming the obligation to pay a variable income or a combination of fixed and variable income to the owner, in such a way that the risk of the activity is shared.
  • Management of the operator in the name and on behalf of the owner, in such a way that the owner 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 traced back to the figure of a real estate lease contract;

– In the third case , we are dealing with a contract for the provision of services with a mandate component, in which the owner must entrust the manager with the performance of the commercial acts necessary for the operation of the property, but the owner assumes the risk and risk of the operation, agreeing on management fees in favour of the manager.

Advertising on an online platform

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 homes usually develop websites where they offer accommodation in them. It is very common, however, for both individual owners and managers who offer accommodation in a large number of homes to go to online platforms  in order to advertise their accommodation on these platforms.

To this end, online platforms  have standard contracting conditions.