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Tourist apartments need a coordinated regulatory framework

| News | Real Estate / Public and Regulatory Law

Antonio Ñudi and Jorge Ortiz on a regulatory framework that provides tourist apartments enough legal certainty

Tourist housing, at the beginning of collaborative commerce a paradigm, has today become a business that, channelled through technological platforms such as Airbnb or Homeaway among others, hundreds of millions of euros are moved each year. Flexibility in format and price, ease in contracting, confidence in the transaction or the usefulness of the system of recommendations between users are, perhaps, some of the elements of its success. In contrast, millions of euros of submerged economy, increases in the price of traditional rental, tourism in the city centres or unfair competition are the arguments used by administrations, traditional hoteliers and associations of entrepreneurs of tourist apartments to demand greater control of these activities. No one doubts that there must be a regulation that provides enough legal certainty for operators, protects consumers and users, allows coexistence with other neighbours and defends free competition, but from what areas should these activities be regulated, which are the administrations responsible for this?

The National Commission on Markets and Competition in its study on housing for tourism use in Spain of 19 July 2018, focuses on the possible illegality of excessive regulation.

At the municipal level, Town Councils are using their urban planning jurisdiction to limit activity by requiring activity licences and prior registration. In this sense, Barcelona City Council pioneered the regulation of tourist housing through the Special Urban Plan for Tourist Accommodation.

Madrid City Council is processing the Special Plan for the Regulation of the Use of Tertiary Services in the accommodation class, the main objective of which is to preserve residential use in the central areas of the city through restrictive techniques in the system of compatible uses in residential buildings. In addition, until it is approved, it has suspended the granting of licences of this type in these areas. In the case of Valencia, the intention is to modify the PGOU (land use plan) so that only houses located on the ground floor or first floor can be used as tourist housing. Possibly the most restrictive case is that of the City Council of Palma de Mallorca, whose General Plan does not allow tourist use in multi-family buildings, limiting it to single-family houses. At a regional level, the requirement to present a declaration responsible for starting the activity, that the home is furnished or the registration of the home in an administrative register - the recent ruling of the SC of 10 December 2018 understands that this does not pass the test of proportionality and should not be required - are aspects in which all the rules coincide but, from there, there are various ways to address aspects such as the conditions of service provision, rights and obligations of users and operators, or inspection services and penalty regime.

Conflicts of coexistence are also taking place within the owner's communities, as it is understood that this type of activity brings the neighbours greater nuisance and greater wear and tear on the common areas. The doctrine of our Courts -v. gr. The ruling of the Provincial Court of Barcelona of 27/12/2017- has determined that this use cannot be limited to owners who acquired without any limitation, so that the agreements of the communities of neighbours in this sense, which must be adopted unanimously, cannot be applied retroactively. The recently repealed Royal Decree-Law 21/2018 on rent, introduced restrictive measures for the implementation of these activities, reducing to 3/5 the necessary qualified majority and establishing the possibility of imposing special quotas or an increase in the share of common expenses. obligations of users and operators, or the inspection services and sanctioning system.

Another aspect to keep in mind is security. The Organic Law of Citizen Security requires lodging establishments to identify guests and communicate them to the authorities, which is not done in the case of tourist housing. Regarding fiscal control, Royal Decree 1070/17, of 29 December 2017, introduced new obligations that the digital platforms that intermediate in the rental of housing for tourism purposes in Spain for quarterly periodic information to the AEAT (Tax Administration) - as a provider of information services - through model 179. In this way, through digital platforms, the Treasury inspects potential taxpayers.

In short, the emergence of this new sector of activity generates a series of social and economic conflicts for which there are no transverse regulatory tools at the national level to give a unitary response, regardless of the territory where they are located and the various aspects to be regulated, being that the regulatory competence of rentals is of the State, tourism in its territorial scope of the Autonomous Communities, and the conditions of use and licensing of municipalities. And all of them, in accordance with the rules of free competition, applying the principles of free access to service activities and the exercise thereof recognised in Law 17/2009, of 23 November, which transposes into Spanish law Community Directive 2006/123/EC, of 12 December 2006.

It would be helpful to convene a tourist coordination table and that, as a result the cooperation of all the Administrations, business sector and neighbours, a harmonization of regulations would be achieved that would regulate in a homogeneous way the phenomenon of tourist housing throughout the national territory.

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