The Plenary of the First Chamber of the Spanish Supreme Court has issued two rulings, both dated October 3, 2024, establishing that communities of owners may prohibit short-term rentals (“alquileres turísticos”) through a resolution adopted by a qualified three-fifths majority at a community meeting.
This is the first time the Supreme Court has interpreted Article 17.12 of the Horizontal Property Law, introduced by Royal Decree-Law 7/2019 of March 1, on urgent measures regarding housing and rentals. The Court addressed the divergence in criteria among different Provincial Courts regarding whether the prohibition of short-term /touristic rentals in a building under a horizontal property regime, as regulated in Article 5(e) of Law 29/1994 on Urban Leases, must be approved by a three-fifths majority or by the unanimous consent of all owners in the community.
After reaffirming previous case law, which supports the legality of including prohibitions on that kind of rentals in the community regulations, and recalling that restrictions on the use of private elements within a horizontal property regime are legitimate and constitutionally protected, as confirmed by the Constitutional Court, the Supreme Court proceeded to interpret the terms “limit or condition” found in Article 17.12 of the Horizontal Property Law. Applying the interpretive approach of section 3.1 of the Civil Code, the Supreme Court rejected the notion that these terms should be interpreted narrowly, concluding that, from both a grammatical and semantic perspective, the verb “limit” encompasses the most extreme form of limitation, namely, the power to prohibit.
This interpretation is further reinforced by an analysis of the intent and purpose of Royal Decree-Law 7/2019, whose preamble justifies the adoption of urgent measures in response to the growing difficulties in accessing rental housing, partially driven by the emergence of short-term/touristic rentals as a far more profitable alternative for property owners.
Finally, the Court noted that if the possibility of adopting a prohibition with a three-fifths majority were not accepted, any attempt to impose such a restriction would be unfeasible, as a single negative vote from a homeowner engaged in touristic rental activity would be enough to block the resolution.
