Javier Valentín, vice president of the Canary Islands Holiday Rental Association (ASCAV), the lawyer defending the interests of holiday rental properties in tourist areas against the position of the hotel association in southern Gran Canaria, used the pages of Canarias 7 this Thursday to state that a ruling by the Las Palmas Provincial Court indicates that "neighbors can only prohibit tourist apartments unanimously, and it will not be retroactive ." The curious part of the news comes at the end of the print or digital article: "Given that some provincial courts have ruled differently, it is up to the Supreme Court to unify the criteria for the entire country, although in the Canary Islands, the recent ruling currently prevails." This can be interpreted in many ways, but one of them is that the Supreme Court has the final say.
In parts for those who do not understand the matter: the Supreme Court has its headquarters in Madrid and is a single jurisdictional body in Spain with jurisdiction throughout the national territory, constituting the highest court in all orders (civil, criminal, contentious-administrative and social), except for the provisions regarding constitutional guarantees and rights, whose jurisdiction corresponds to the Constitutional Court.
What has the Supreme Court said? On Tuesday, December 12, 2023, it issued a press release that literally stated: "The Supreme Court endorses the veto of 'tourist apartments' in neighborhood communities that prohibit the use of economic activities. And it is not that the Supreme Court is has expressed once: it has done so twice with two rulings, of November 27, 2023 and another of November 29, 2023, which were jointly referenced in the aforementioned press release because basically the essence and object of the litigation in both procedures and Therefore, in both resolutions it was of the same nature. Specifically, in both sentences, the Supreme Court analyzed statutory clauses on the prohibition of carrying out “professional, business, mercantile or commercial activities of any kind” in the homes of a building under a condominium regime. ; reserving its use to that of an exclusively residential nature", and the fit or not of the specific activity of exploitation of tourist apartments in said type of clauses.
Specifically, in the ruling of November 29, 2023, the plaintiffs exercise the action to challenge several agreements approved at the Board of Owners and, as a consequence, declare that the prohibition contained in the fifth rule of the statutes, established by the promoter, does not include the use and destination of the homes for short-term rental, vacation rental or tourist apartment in any of the portals that make up the building. In the Judgment of November 27, 2023, the other to which the aforementioned press release refers, the actors exercise the action to challenge several agreements approved at the Board and, consequently, declare that the prohibition contained in the The fifth rule of the statutes does not include the use and destination of the homes for short-term rental, vacation rental or tourist apartment in any of the portals that make up the building.
The Supreme Court makes it very clear in both cases that it is not analyzing the new regulation of the Horizontal Property Law, which provides that the agreement that limits or conditions the exercise of this activity will require the favorable vote of three-fifths. of the total number of owners, nor whether the LPH allows the activity to be prohibited or only limited, a question still pending resolution and also of absolute relevance given the discrepancy between different Provincial Courts of the national territory regarding the interpretation of said article. The High Court concludes that vacation rentals meet the condition of economic activity that is offered or marketed as accommodation for tourist or vacation reasons, and that they are temporarily transferred by the owner, operator or manager and marketed directly or indirectly by them. to third parties, repeatedly or habitually and in exchange for economic consideration.
