Last week, specifically on October 3, the First Chamber of the Supreme Court in Plenary has issued two rulings (numbers 1.232/2024 and 1.233/2024) that establish as a new jurisprudential doctrine that the communities of owners can prohibit the activity of the so-called “tourist” by a community agreement that has only a three-fifths majority and not the unanimity of all the community members.
In these judgments, the High Court, resolving the controversy that existed between the doctrines emanating from several provincial courts, has analyzed for the first time the interpretation and application of Article 17.12 of the Horizontal Property Lawlintroduced by Royal Decree-Law 7/2019, of March 1, on urgent housing and rental measures.
And in this analysis, after reiterating as it had already done previously in several judgments the lawfulness of the statutory prohibition of the rental of dwellings for tourist use and the legitimacy and constitutionality of the prohibition of the use of the private elements in the horizontal property regime, it interprets the expression “limit or condition” contained in the aforementioned article 17.12 of the Horizontal Property Law, in accordance with the provisions of article 3.1 of the Civil Code and attending to the grammatical, semantic and literal criteria, determine that the term “limit” does not exclude the prohibition.
In his opinion, the foregoing conclusion is confirmed by the teleological criterion, the spirit and purpose of the regulation, which justifies the adoption of urgent measures in view of the difficulties of access to rental housing due to the increase in rents, due, among other factors, to the growing phenomenon of tourist rentals.
In short, with this new doctrine the Supreme Court considers that the attribution of this power of prohibition to the communities of owners with the reinforced majority is a measure proportionate to the interests in conflict, and warns that if this double majority of three fifths is not admitted, the vote against of only one owner (the owner of the apartment in which the activity is intended to be carried out) would be sufficient to prevent the adoption of the agreement.
Author: Pablo Solá Martí. Partner of Lacasa Abogados, Palacios & Partners.