The Plenary Session of the First Chamber of the Supreme Court has issued two rulings in which it declares that communities of owners can prohibit the activity of tourist rentals through agreements adopted in a meeting by a majority of three-fifths. The Chamber has ruled for the first time on the interpretation and application of article 17.12 LPH, introduced by Royal Decree-Law 7/2019, of March 1, on urgent measures in housing and rental matters.
The decisions, adopted unanimously, resolve the controversy between the provincial courts, evidenced in the two contested judgments of opposite sign, on whether the prohibition of the tourist activities described in art. 5.e) of Law 29/1994, of November 24, on Urban Leases (LAU), must be adopted by a majority of three-fifths or by unanimity of the owners.
The Court bases its case law on the prohibition in the statutes on renting out homes for tourist use that is declared lawful (judgments 358/2018, of 15 June, and 729/2014, of 3 December, and in the most recent judgments 1643/2023, of 27 November; 1671/2023, of 29 November; 90/2024, of 24 January; 95/2024, of 29 January; and 105/2024, of 30 January).
Secondly, it recalls that the prohibition of the use of private elements in the horizontal property regime is legitimate and in accordance with the Constitution (STC 37/1987, of March 26, 301/1993, of October 21 and 28/1999, of March 8). Next, the court interprets the expression "limit or condition" contained in art. 17.12 LPH in accordance with the provisions of art. 3.1 CC. It rejects that this is a case of interpretation of a statutory rule under restrictive conditions and concludes that, taking into account the grammatical and semantic criteria and its literal meaning, the term "limit" does not exclude the prohibition.
This conclusion is confirmed by taking into account the teleological criterion, the spirit and purpose of RDL 7/2019, which is expressed in its preamble that justifies the adoption of urgent measures in the face of difficulties in accessing rental housing due to the increase in rents due to, among other factors, the growing phenomenon of tourist rentals. It considers that the attribution of this power of prohibition with the reinforced majority is a measure proportionate to the interests in conflict. As an additional reasoning, the court points out that, if this double majority of three-fifths is not admitted, the vote against of the owner of the apartment in which the activity is intended to be carried out would be sufficient to prevent the adoption of the agreement.
