The Supreme Court has upheld the veto against living in tourist apartments in communities of owners if when it was established it was done for economic purposes. The Civil Chamber has issued two rulings in which it considers that the rental of housing for tourist use is an economic activity. The court considers that the apartments are governed by joint interests and tourist use is the priority economic activity. The ruling has its origin in a lawsuit by some neighbors against some vacation rental users and that is where it says that the rental is legal or not depending on what is included in the founding statutes of the communities of owners.
In the south of Gran Canaria, Vecindario real estate offices associated with Tenerife real estate agencies are facing million-dollar lawsuits because they sold tourist apartments to owners as residences or as vacation rental investments. There are thousands of owners trapped by legal malpractice. Some Vecindario offices are trying to pressure the authorities of San Bartolomé de Tirajana not to prevent regulatory changes.
The Civil Chamber of the Supreme Court has issued two rulings in which it admits that it is not possible to live in tourism businesses since, at the same time, it endorses the veto of tourist apartments in communities of owners that expressly prohibit in their statutes the use of homes to carry out an economic activity.
Even therapy or medical consultation businesses are outside the tourist purpose. The court concludes that if the corporate bylaws are applied, it results in a statutory prohibition, the validity of which is not disputed, according to which professional, business, commercial or commercial activities of any kind may not be carried out in the independent apartments of the building - housing. ; reserving its use to exclusively residential use. Therefore, the community that was created for tourism purposes happens exactly the same.
The Chamber underlines, in view of the tourism sector legislation of the Autonomous Community and the applicable municipal ordinances, “the condition of economic activity of the rental activity of homes that are offered or marketed as accommodation for tourist or vacation reasons, and that are temporarily transferred by the owner, operator or manager and marketed directly or indirectly by the owner, or indirectly, to third parties, repeatedly or habitually and in exchange for economic consideration.
It adds that “the fact that the performance of this activity entails a series of requirements and conditions, including those of operation, implies the provision of a series of services and the assumption of certain duties inherent to the marketing of homes for tourist use that determine that "the activity and provision of the tourist service is carried out in the home itself."
The ruling states that "the above allows, as the Court rightly says, to conclude that the rental of housing for tourist use is an activity included in the statutory prohibition, since it is an economic activity, comparable to the economic activities that are listed as examples. in the Fifth Rule of the Statutes, all of them characterized by being uses other than housing and in which a commercial, professional or business component occurs.”
The court concludes that this interpretation is in accordance with the jurisprudence of the Chamber that “the limitations must be clear, precise and express because the inclusion of tourist activity in the statutory prohibition is perfectly consistent with its letter and spirit, which does not It is another to prohibit economic activity with a commercial, professional or business nature from being carried out in homes, as is the case with tourist apartments.”
