New developments in the regulation of dwellings for tourist purposes in Andalusia: Main Modifications

The Governing Council has approved the new Decree 31/2024, of 29 January, which amends several provisions in terms of tourist accommodation, tourist apartments and hotel establishments in the Autonomous Community of Andalusia, published in the BOJA of 2 February. Consequently, the amendments introduced will enter into force on 22 February 2024.

Specifically, with regard to dwellings for tourist purposes (VUT), these amendments incorporate new requirements or update others provided for in Decree 28/2016, of 2 February, with the aim of responding to the new reality of the sector.

The main developments from a practical point of view detailed below:

1.      Change of name:

The reference to “Viviendas con fines turísticos ” is replaced by “viviendas de uso turístico “, unifying the nomenclature used by the rest of the Autonomous Communities and the Supreme Court.

2.      Enabling Town Halls to limit the number of tourist dwellings.

Town Halls may establish limits on the maximum number of dwellings for tourist purposes per building, sector, area, period, area or zone, always justified by general interest, in line with the latest resolution of the Supreme Court (STS 1550/2020, 19 November). In addition, these limitations must respond to clear, unequivocal and objective criteria, which will be duly publicized prior to their application.

From the owners’ point of view, in practice, this measure may lead to greater uncertainty, unpredictability and confusion of the legal framework to be applied, affecting investment through tourist leasing and discouraging the entry of potential new operators.

In order to correct this inevitable uncertainty, the Decree justifies this measure in its Explanatory Memorandum, where we can read that it will be the urban planning instruments or municipal ordinances that may introduce, where appropriate, the corresponding requirements on the compatible or complementary use of this type of dwellings that serve as tourist accommodation, or introduce other types of sectorial limitations different to those of tourist planning in accordance with the principles of proportionality, objectivity, necessity and legal certainty.

Likewise, in line with the ruling of the Court of Justice of the European Union of 22 September 2020, the criteria set by local councils must be justified by a  overriding reason relating to the public interest and be proportionate, clear, unambiguous and objective, as well as being made public in advance.

In accordance with the jurisprudence of the CJEU, the overriding reasons relating to general interest will be, by way of example, the protection of the urban environment, provided for in article 3 of the Land and Urban Rehabilitation Law 7/2015 of 30 October, or the right of citizens to decent and adequate housing, recognized in article 47 of the Spanish Constitution.

In any case, since the Explanatory Memorandum states that the limitation established by the City Council will be subject to strict scrutiny from the perspective of guaranteeing the market and competition, we consider that, following the criteria set by the European Commission, absolute activity bans should be considered a measure of last resort, which should only be applied when less restrictive measures cannot be used to achieve a legitimate public interest objective.

3.      The obligation for VUTs to be located on residential land is eliminated.

It is justified on the grounds that it is not up to the regional administration to determine this, but that it is the urban planning instruments or municipal by-laws that can introduce, where appropriate, the corresponding requirements on the compatible or complementary use of this type of dwellings that serve as tourist accommodation.

However, the indeterminacy about the possible location of tourist accommodation is intended to be overcome by the affidavit stating that the dwelling is compatible for use as a tourist accommodation in accordance with the applicable urban planning or ordinance.

4.      Real affidavit regime to access the activity.

The requirement to present the Occupancy License with the affidavit is removed so that the latter is not subject to a prior procedure before the Town Hall in order to be able to carry out the activity of renting out dwellings for tourist use. However, the affidavit will include the statement that the dwelling is compatible for use as a tourist dwelling in accordance with the applicable urban planning or ordinance.

Verification of the accuracy or veracity of the information stated will be carried out through the exchange of information with the corresponding Town Halls. Consequently, it will be a requirement to comply with the municipal town planning regulations and the registration of the property in the Andalusian Tourism Registry will be communicated immediately by the Tourism Administration to the corresponding Town Halls.

The lack of licenses or authorizations required by the specific sectorial regulations, especially urban planning or land regulations, will lead to the cancellation of the registration of the dwelling in the Andalusian Tourism Registry.

5.      Measures on professionalization of the sector: the operating company.

With the aim of professionalizing the activity, facilitating relations with the tourist administration and guaranteeing the rights and duties of users, the legal figure of the operating company is strengthened: the actual administrator or provider of the service, natural or legal entity, of one or more dwellings for tourist use, regardless of their authorization to do so, must appear as owners of the activity in the affidavit.

The administration of the accommodation is presumed when the main ancillary services inherent to the accommodation are carried out (cleaning on arrival and departure, handing over the keys and reception of guests, care during the stay, check-in, etc.).

Entities that have the status of operating company will have a period of six months to notify the Andalusian Tourism Registry of the change in ownership of the activity of the corresponding tourist accommodation (until 22 August 2024).

6.      The limit of a maximum of two VUTs over a distance of 1,000 metres is abolished.

Tourist apartments of the joint group, i.e. establishments comprising three or more accommodation units located in the same building or group of contiguous or non-contiguous buildings occupying only part of it, in which the tourist accommodation service is provided, are expressly excluded from the scope of application of Decree 28/2016, which regulates dwellings for tourist purposes.

The novelty lies in the definition of “group of non-contiguous buildings” which will be constituted by two or more properties located within the same urbanization or residential complex with common facilities or services.

The existence of a geographical reference in its definition is therefore eliminated and replaced by another, more logical and coherent, referred to a certain functional unit: the same urbanization or residential complex with common facilities or services.

7.      Dwellings subject to public protection.

Dwellings subject to the public protection regime may not be dwellings for tourist use, in accordance with the Regulations on Protected Housing of the Autonomous Community of Andalusia which, in article 11, establishes that the economic or professional activity of the owner carried out therein may under no circumstances involve the rental or transfer of part of the dwelling for lucrative purposes.

8.      Dwellings for tourist purposes in Communities of Owners.

VUTs may not be located in buildings whose articles of association or statutes of the community of owners expressly prohibit the activity of tourist accommodation.

In addition, the affidavit must state that tourist rental is not prohibited in accordance with the rules governing the community of owners.

This provision must be interpreted in the light of article 17.12 of Law 49/1960 of 21 July on Horizontal Property, which rules the agreement necessary to limit or condition this type of activity and which, in any case, will not have retroactive effects.

9.      Dwellings recognized as being in a situation of “asimilado a fuera de ordenación ” cannot be used as VUT, unless prior express authorization has been granted by the competent municipal body for the change of activity, in accordance with town planning and environmental legislation.

The Autonomous Administration has understood that the recognition of the status of a dwelling as “assimilado a fuera de ordenación ” does not guarantee its suitability to provide a tourist accommodation service.

In this sense, a provision has been included whereby, by means of an express authorization from the competent municipal body, the prohibition on the use of dwellings recognized as “asimilado a fera de ordenación” can be exempted, but the change of activity must be in accordance with urban planning and environmental legislation. The aim of this is to ensure that the figure of “asimilado a fuera de ordenación” is not used for situations or uses for which it is not intended, that is, to solve the problem of irregular buildings that are finished and for which it is not possible to adopt measures to protect territorial and urban planning legality because the period for their exercise has elapsed.

Following the latest jurisprudence of the Supreme Court, specifically Judgement 1550/2020 of 19 November, the possibility of using a dwelling for tourist use may require an urban planning license for a change of activity, and this can only be granted if the applicable urban planning regulations are complied with.

10.  Obligation to reflect in the affidavit the exact periods of activity.

The tourist accommodation may only be marketed during the periods indicated, and marketing outside these periods shall be considered clandestine activity.

Although this provision could be understood as a limitation when it comes to organizing the operation of the business, the reality is that the data included in the Andalusian Tourism Registry can be modified at any time with a simple electronic declaration.

The VUTs must communicate within six months of the entry into force of the Decree (until 22 August 2024), the periods of operation.

11.  Help from  Law enforcement agents to evacuate users.

In addition to the provision contained in the previous Decree of refusing to allow the stay or requiring users to leave the dwelling within 24 hours if they fail to comply with any of the obligations established in the Law on Tourism, especially the rules of coexistence, it is now expressly possible to request the assistance of law enforcement agents to evict those who fail to comply with the usual rules of social coexistence or who try to access or remain in the dwelling with a different purpose, in accordance with article 36 of the Tourism Law.

12.  Technical requirements and habitability requirements are updated.

Among others:

–          Minimum surface area: It is established as a requirement that the dwelling for tourist use must have a minimum size of 14 m2 per place, this being the minimum required for a dwelling to have an occupancy license.

–          Number of bathrooms: two if the number of places is more than five and three bathrooms if the number of places is more than eight.

–          Cooling and heating.

–          24-hour telephone helpline.

–          A noise monitoring system is not required.

The regulation refers to an annex for the rest of the requirements, such as having a first aid kit, the installation of some type of smoke detectors in the area near the kitchen or a fire extinguisher, and at the same time it is empowered so that by order of the head of the Regional Ministry of Tourism, its content can be modified and adapted to the new demands of the users.

VUTs that do not comply with the habitability requirements will have a period of one year to comply with them.

Finally, it should be noted that the regional administration has begun the process of drafting the new Andalusian Tourism Law, which will make the appropriate modifications to the concept of dwellings for tourist purpose and, above all, which will have its own regulatory development.

Pérez de Vargas Lawyers.