Distinction between a dwelling for tourist use and a tourist flat of the joint type: legal consequences.

I.- DWELLING FOR TOURIST USE (VUT)

1.- Definition

In Andalusia, dwellings for tourist use are regulated by Decree 28/2016 of 2 February, recently amended by Decree 31/2024 of 29 January.
VUTs are defined as those dwellings equipped in conditions of immediate use, located in properties where the accommodation service is to be offered at a price in the Autonomous Community of Andalusia, on a regular basis and for tourist purposes.

It is forbidden to exploit them as dwellings for tourist use:

– Dwellings subject to a public protection regime.
– Dwellings located in properties whose constitutive titles or statutes of the community of owners contain an express prohibition for the activity of tourist accommodation.
– Accommodation units located in tourist accommodation establishments that must occupy all or an independent part of the building.
– Dwellings recognised as being in a situation of “assimilated to out-of-order”, unless prior express authorisation has been granted by the competent municipal body for the change of activity, in accordance with town planning and environmental legislation.
On the other hand, dwellings that are ceded to the same tourist user for continuous periods of more than 2 months are excluded from the scope of the VUT, in which case we will be dealing with a seasonal lease; as well as tourist flat establishments of the joint group (AT), among others.

2.- Obligations of the owner of the operation

Firstly, in order to start providing the accommodation service in the dwelling, the person or entity that operates this service, as owner or non-owner with an authorising title, will have to present the corresponding responsible declaration electronically to the competent Regional Ministry in matters of tourism, in which they state that they comply with the requirements established in this decree, being able to advertise themselves from this moment onwards as a dwelling for tourist use.

Without prejudice to the minimum requirements of the dwellings themselves and their equipment, the owner of the tourist accommodation must comply with the following obligations, among others:
– Provide users with a 24-hour telephone number to immediately attend to and resolve any queries or incidents relating to the dwelling.
– To clean the home when new users enter and leave.
– To have official Complaints and Complaints Sheets of the Junta de Andalucía at the disposal of the users and a poster announcing the same in a visible place inside the home.
– To inform the users of the rules of coexistence of the community of owners, the areas of restricted use, those relating to the use of the installations, rooms and equipment of the dwelling, and other information required by the Decree.
– Provide proof of payment for the services and advances made, where applicable, with the following content, without prejudice to compliance with the provisions in force for tax purposes: Identification of the owner of the property; identification of the property and its registration code in the Andalusian Tourism Register; identification of the user; number of people staying; date of arrival and departure; and price of the service contracted and date of payment.
– To inform users if it is a member of the Consumer Arbitration System.
In addition to the aforementioned list of obligations, we must add that the owner of the operation, whether or not he/she is the owner with a licence, will be responsible to the Tourism Administration and to the users.

Furthermore, the owners of the tourist accommodation operation will be responsible for keeping an updated list of the accommodation, and must notify the Andalusian Tourism Register of any modification that affects them, whether it be in the legal relationship that qualifies them for the operation or in the conditions of each of the properties operated.
Having defined the concept of a TUV and the main obligations of its operator, we will focus on its distinction with the TA and on the legal consequences derived from this distinction.

II.- JOINT TOURIST FLAT ESTABLISHMENTS (AT).

Tourist flat establishments are regulated by Decree 194/2010, of 20 April, on tourist flat establishments.
A tourist flat establishment is considered to be that which is made up of a group of accommodation units, intended to provide the tourist accommodation service, which have adequate furniture and facilities for the conservation, preparation and consumption of food and drink within each accommodation unit, and which are operated in common by the same owner.

Thus, those establishments comprising three or more accommodation units located in the same building or group of contiguous or non-contiguous buildings, occupying only part of the same, in which the tourist accommodation service is provided, will be tourist flat establishments of the joint type.
For these purposes, a group of non-contiguous properties is understood as a group of properties consisting of two or more properties located within the same urbanisation or residential nucleus equipped with common facilities or services.

Therefore, the same owner may not operate 3 or more accommodation units under the VUT regime, when they are located in the same property or in the same urbanisation or residential nucleus with common facilities or services; since, in this case, they must do so under the tourist flat (AT) modality, which is subject to a different regulation and regime.

III.- LEGAL CONSEQUENCES OF THE DISTINCTION

The distinction between the two types of accommodation (VUT and AT) is not purely abstract or theoretical; on the contrary, it has important practical implications for their owners and other tourism operators.

The following is a brief, but not exhaustive, list of what we consider to be the most relevant ones:

1. Maximum number of accommodation units: TA will not have a maximum number, but VUTs may not exceed two units within the same building or in the same urbanisation or residential nucleus equipped with common facilities or services, on pain of being treated as TA.

2. Prohibition of residential use: TA is limited by the prohibition to use the accommodation units of tourist flat establishments for any other use, including residential use. Even in the Land Registry, the limitation of the right of use of each accommodation unit in favour of the operator and the period for which it is subject to tourist use shall be recorded in a marginal note.
However, the VUT shall not be affected by this prohibition (e.g. the owner may combine the operation of the dwelling with his own use during periods when the service is not provided).

3. Activity/opening licence: According to article 3.2 of Decree 194/2010 of 20 April, we can understand that TA establishments need an activity/opening licence.
For its part, the VUT may start its activity with the mere registration in the Andalusian Tourism Register.

4. Duration: Article 25 of Decree 194/2010, of 20 April, after the modification operated by Decree 31/2024, eliminates the time limit to the use of the TA accommodation unit.
On the other hand, the rental of the VUT may not exceed 2 months per user.

5. Category: ATs are categorised according to the quality of the establishment’s facilities and services, from 1 to 2 keys for the joint group and from 1 to 4 keys for the buildings group.
VUTs are not subject to this categorisation.

6. Standards: The standards required of TAs are higher, with higher requirements on matters such as admission; reception; services; distinctive symbols to be displayed in the establishment; and the inclusion of the limitation of the use of the accommodation unit in the Land Registry. Along these lines, they will be subject to greater inspections by the City Council and the Regional Ministry, including that relating to the proper classification of the establishment.

In conclusion, by means of this note, we have only wanted to explain in a simple and accessible way that the terms “dwelling for tourist use” and “tourist flat”, far from being synonymous, are subject to different requirements and regulations, and this distinction is of great practical importance.