Horizontal Property

A community of property owners sued two neighbors because they were using their apartment as a tourist accommodation . The community argued that this clashed with a rule in their statutes , which allows floors to be allocated "for housing of the owner or tenant" expressly prohibits other uses, including "using the apartments and premises (...) as inns." Therefore, the community filed a cease and desist action (Horizontal Property Law art. 7.2) to declare that the statutes were being violated and to order the definitive cessation of that activity.

The defendants did not deny the facts since the apartment had been registered as a tourist accommodation since 2018 in the tourist registry of the Community of Madrid, and this use had been discussed in a meeting. Nevertheless, they argued that they would continue to rent it to tourists because, according to them, a tourist accommodation is not the same as an "inn ". ”.

Initially, the court ruled in their favor by understanding that the statutes did not mention tourist apartments and that "lodging" could not be equated to tourist use. It also emphasized that it had not been proven that the activity caused real problems (neighbor complaints, police interventions, etc.).

However, the community appealed, and the Provincial Court of Madrid changed the outcome when it stated that there was indeed a violation of the statutory prohibition and ordered the "lodging activity" that it saw in that tourist rental to cease, relying on regional regulations and the fact that it was accommodation for a price, temporary, and without intention of permanence.

Finally, the Supreme Court (TS) dismisses the owners' appeal and confirms the prohibition . The TS reminds that limitations on use in horizontal property must be explicit and are interpreted restrictively, but in this case there was indeed a clear clause ("lodging") and, due to its meaning (transient accommodation open to the public and advertised on platforms), it fits with tourist rental . It also mentions that tourist use is excluded from the lease of housing according to the LAU art. 5.

If you find yourself in a similar situation or have any controversy related to a tourist or vacation rental, our professionals can analyze your case and take the most appropriate actions to defend your interests