Coexistence in neighbourhood communities is an art form, and the irruption of the Flexible AccommodationCan a homeowners' association simply prohibit a neighbour from using his or her property for tourism? The answer, according to the current legal framework and case law, is not a resounding yes.
The Horizontal Property Law, reformed in 2019, provides communities with tools to intervene, but with nuances. A community cannot prohibit outright tourist rental if its bylaws did not expressly prevent it before the owner acquired the right to rent. However, it can limit or restrict this activity. This requires a three-fifths qualified majority of owners and participation fees, a significant threshold that ensures a broad consensus.
What kind of limitations can be imposed? The options are varied and seek to mitigate potential nuisance without eliminating the activity. For example, specific areas may be set aside for the Flexible Accommodation within the property, or impose stricter rules on the use of common areas, such as swimming pools or gyms. One of the most common measures, permitted by law since 2019, is the increase of up to 25% in common charges for those dwellings intended for tourist use. This is intended to compensate for the increased wear and tear on communal facilities and services.
The case law of the Supreme Court has been clear on this point: a community cannot completely prohibit tourist rental if the statutes of the condominium did not explicitly prohibit it before the owner acquired the right to exploit the property. This sometimes generates situations of uncertainty and conflict, especially for those owners who bought their properties with the intention of using them as a holiday home. Flexible Accommodation and subsequently come up against EU regulations.
The right to property and its legitimate uses are fundamental pillars, and the law protects the owner's ability to dispose of his or her property. Limitations seek a balance: allowing communities to manage negative impacts (noise, security, intensive use of facilities) without undermining the right to economic exploitation of the property.
