The Supreme Court has finally given the first brushstroke to a matter of special and recent problems such as holiday lettings.
In this first batch of judgments, the Supreme Court has clarified that the holiday letting activity is considered to be a commercial activity. This attribution implies that the holiday rental activity will be unfeasible in those Communities of Owners whose Bylaws stipulate the prohibition to carry out professional, business, mercantile or commercial activities.
It is important to point out that the right to private property provided for in art. 33 of our Constitution is somewhat limited in those cases where there is a horizontal property regime, since the benefit of the common interest takes precedence.
The Supreme Court has not entered to value on the requirements to condition or to limit the activity of the holiday letting, that is to say, the famous favorable vote of 3/5 part of owners. In this regard, it is worth remembering that there is still to this day a deep discrepancy between the Provincial Courts when interpreting art.17.12 of the Horizontal Property Law in relation to art.5 of the Urban Lease Law.
It should be noted that several Land Registers are leaning towards the criterion of the unanimity of the owners in order to prohibit holiday lettings, as has been considered by different Provincial Courts.
Therefore, we must carefully analyze and interpret the wording of the rules/statutes of the Community of Owners in order to determine if in fact the activity of holiday lettings is prohibited and to be attentive to the judgment of the Supreme Court on the votes necessary for the inclusion of the prohibition of holiday rentals in the bylaws.
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