Decree passed by the Government of the Autonomous Community of Andalusia on the 3rd February 2,016 about dwellings used with touristic purposes.Advocaten
On the 3rd of February 2016 the Government of Andalusia passed a new Law that intends to provide legal rules for those properties that are regularly rented to tourists. Unfortunately, this Law hasn’t been drafted with accuracy what is currently creating a lot of confusion not only to the local Legal community but also to property owners.
This lack of accuracy makes very difficult to fully understand what is that is required with this new Law. Only when the Law is in place and being applied for a few months it will be able to know better what is exactly required. Individuals and professionals will require further details and clarifications through the written way in place (called “consultas”) and hopefully soon, all the doubts will be clarified.
For the time being and before the 12th of May – which is the day when the Law becomes legally in place – property owners must study their particular cases. The Law requires to all those properties that are considered as “dwellings for touristic purposes” – according to the requirements set out into this Law – to present a self-assessment (Article 9 – Declaración del Responsable”) together with a number of documents, to be included in a Public Register for these type of properties. This Register will consider applications for registration only as from the 12th of May so for those that wish to apply to rent in summer, this days could be very useful to prepare the necessary documents to attach to the application for registration. Having said this, it also seems that soon will be possible to make a preliminary declaration, likely at the Official Website of the Andalusia’s Government.
The purpose of this law is in fact to provide an special legal regime for these properties, including rules about how to take or refund reservations / deposits, as well as to set guarantees for customers and users of this type of properties such as: to clean the property with the entrance and vacating of new clients, to provide touristic information to clients, to provide a minimum equipment or furniture or to provide a complaint book to clients among others.
WHAT ARE THE PROPERTIES EXCLUDED FROM THIS LAW (Art 1.2)
Those rented with no charge.
Those rented for more than 2 months per year to the same person.
Note that “Dwelling for Touristic Purposes” is not the same tan “Touristic Apartments”- These second ones are regulated by a different Law. As an example an individual that owns 3 or more residential properties in different buildings (into the same urbanization or not) are considered “Touristic apartments” and not “Dwellings for Touristic Purposes”. These ones have further requirements.
WHAT ARE THE PROPERTIES FORMALLY INCLUDED INTO THIS LAW (Art 3)?
The Law literally rules that these properties are:
1.- Properties built in residential land where accommodation will be offered against a consideration (price) in a “regular” way (as opposite to occasionally) with “touristic purposes” in the Autonomous Community of Andalusia.
2.- It will be understood that the property is occupied regularly and with touristic purposes when the accommodation is publicly marketed through “channels of tourist offers”.
3.- Channels of touristic offers are travel agencies, companies who mediate or organize touristic services and those channels that allow booking the accommodation taking money from the client.
If your property is included into any of these 3 cases you must register your property with Junta de Andalusia. If you are not included in any of these types (i.e. long-term rentals or rentals of rural houses/fincas) you do not need to.
The essence of the case lies in the “regularity” of the rentals. The Junta de Andalusia will consider that properties are rented regularly when are advertised through websites that allow clients to book and to reserve the property. So does it mean that in cases where the property is marketed with a board on the balcony or through websites that do not allow booking taking a deposit owners are not required to register? Well, it seems that it would be the case but the real problem is that there is not a rule clearly declaring these cases as excluded from the Law. This means that in case local authorities impose a fine under that scenario, to be able to avoid it, the owner would have to prove that is not renting regularly. In case this is not achieved, then the fine is likely to be confirmed.
HOW TO REGISTER AT JUNTA DE ANDALUSIA?
It is necessary to wait until the 12th of May to apply for registration, though we will report any changes.
The registration is supposed to be done by submitting a written application form – that hasn’t been yet prepared by Junta de Andalusia – signed by the property owner or the person in charge. This is called “Declaration of the person responsible for the dwelling”. Once this form is presented the property can be marketed or advertised.
This declaration or self-assessment will have a minimum content:
Information about the property, describing the maximum number of occupants, including the occupation license. This opens the door to a discussion about properties without license, something very common in places Marbella where it’s possible to find properties without occupation license (because they where built long ago when Town halls didn’t provide any or because they are formally illegal) or even with occupation licenses not valid in cases where the building license was declared illegal.
Data from the company o individual that will manage the property for rentals
WHAT ARE THE LEGAL, TECHNICAL AND ADMINISTRATIVE REQUIREMENTS FOR THESE TYPE OF PROPERTIES?
As stated at the beginning the purpose of the Law is in reality to set up guarantees of users of this type of holiday apartments. Below I include the list of requirements at Article 6 of this Law:
License of occupation.
Ventilation to exterior or internal patio.
Blinds or similar.
Enough furniture and equipment for immediate use according to the number of possible occupants.
Cooling system by devices attached to the property in bedrooms and living room when the property is used at least 2 months from may to September
First aid kit.
Information touristic for occupants in paper or electronic format, including information about the area, restaurants, leisure, shops, supermarkets, places where to park near the property, doctors available, public transport, a map form the municipality and a guide for shows.
A complaint book which availability must be informed in a visible place of the apartment.
Cleaning for new clients.
Linen and appropriate house equipment, in proportion to the number of occupants.
Provide a contact telephone number for client support.
Manuals for white goods and electronic equipment.
Provide information about internal rules of the Urbanization, pets and non-smoking areas.
We hope this article can help property owners to fulfil the requirements of the new Law but in any case, please do not hesitate to contact us for further legal advice.
Jose F. Criado Sanchez
Criado & Kraus