Por David Posadas Álvarez, especialista en Derecho de la Unión Europea
This report has been prepared following the recent enactment of DECREE 28/2016 of 2nd February that regulates Holiday Rental Properties and amends Decree 194/2010 of 20th of April on Holidays Apartments, which comes into effect the 12th of May 2016.
Note that in dealing with the referred subject the following legislation will also interact:
Estatuto de Andalucía (Art 37.1.14 & Art 71)
Law 13/2011 of 23 April (Art 28.1 a)
- Viviendas con fines turisticos: Holiday Property Rentals
- The contract: the tenancy agreement.
- The operator: The individual or agency responsible of the management of the property.
- Statement of compliance: The form you have to submit with details regarding the owner, property and license of first occupation.
The Decree 28/2016 on his preliminary recitals explains that during recent years there has been an increase in the use of private properties intended to use as tourist accommodation which could be underlying.
The above situation has been accelerated by the new ways of commercialization via internet.
The objective of Decree 28/2016 is to regulate the properties that are being offered as tourist accommodation in order to establish minimum guarantees concerning quality & security for the potential users of those touristic services ( “consumers” ) and that generally speaking do not represent the main economic activity of the property owners.
In connection to the abovementioned, Law 4/2015 of 30 of March on the protection of citizens considers activities such as tourist accommodation as part of the citizen security regulation, establishing on its Art 25 the obligation of registering and informing about the lodgers who use this type of accommodation. In accordance to this, the owners of these properties are obliged to fill in the statement of compliance as well as submit a list of all lodgers subject to be inspected by the relevant authority, in compliance to Order INT71922/2003.
Another paramount objective of Decree 28/2016 is the protection of consumers of this type of touristic services.
Furthermore the protection of the environment and urban environment is another reason behind the new law, given that the principle of sustainable development shall be always taken into account in regulating touristic activities.
It is also established in the preliminary recitals that to be able to accomplish the above principles / objectives it will be pivotal to create a census of properties with touristic rental purposes available in Andalucía in order to eradicate situations of unfair competition, encroachment, fraud and underground economic activities. Simultaneously providing the regional government and regional tax authorities with tools to protect consumers of the irregular situations that might emerge.
It is mentioned that a principle of reasonability should be taken into account when dealing with the requirements to be fulfilled by the owners of these properties which in general shall be less demanding than those requested to other related touristic hosting businesses (e.g. hostels, hotels, etc.)
Decree 28/2016 is structured in 4 chapters. It sets a distinction between two type of dwellings: those to be rented as a whole and those to be rented by room (e.g. B&B). For both type of dwellings it sets an obligation to file a statement of compliance in the Tourism Registry of Junta de Andalucía.
It is also important so distinguish two different figures. On one side Holiday Rental Properties with establishments of tourist apartments, which is regulated by Decree 194/2010 and amended by the abovementioned.
Article 1 Object and scope
The main object of Decree 28/2016 is the regulation of properties with touristic purposes as a service of touristic accommodation, in compliance with Law 13/2011, article 28.1.a) of Tourism in Andalucía.
- The following properties are excluded from the scope of this Decree 28/2016:
- a) Properties let out without an exchange of money (free – e.g. house swap).-
- b) Properties to be rented out for over a period of 2 continuous months to the same tenant, in which case only Spain’s Tenancy Act shall apply.
- c) Properties to be rented in a rural land (these type of properties have a different regulation (Decree 20/2002 Tourism in Rural Areas).-
- d) Group of properties formed by three or more units owned by the same landlord sited in the same or continuous development/s.- (in which case Decree 194/2010 of 20 of April, regarding tourist apartments, shall apply).-
Article 2. Legal framework.
1- The accommodation in holiday property rentals shall be considered as a part of touristic services, and therefore shall comply with Law 13/2011 of 23 of December in accordance with this Decree.
2- Holiday property rentals shall also comply with ad hoc/sectorial legislation.
3- The access to holiday property rentals cannot be restricted on ethnic, religion, gender or opinion basis or any other personal or social circumstance.
4- The rights & obligations of the consumers and operators will be regulated by Law 13/2011 of 23rd of December.
5- The operator may deny the continuance in the stay and request the lodgers to leave the property in 24 hours if any obligation stated in Law 13/2011 is breached, especially those referred to the norms of behaviour.
6- The operator/owner in charge of the management of holiday property rentals shall not offer vacancies that do not comply with the given requirements.
Article 3. Definitions.
1- It is understood as holiday home rentals those properties located in residential/ urban land classified as residential in which an accommodation service will be offered, in exchange for a price, with a touristic purpose.
2-There will be a presumption of regularity in this offered service when the property is commercialised and advertised through touristic offer channels.
3- Travel agencies, companies that organise touristic services and platforms which offer the option to book accommodation with them will be considered touristic distribution channels.
Article 4.- Liabilities before the Tourist Administration and consumers.
It will be presumed that the owner of the property is also the person exploiting the business and therefore the person responsible before the authorities and consumers / lodgers unless another person is appointed in the statement of compliance referred to in art. 9.1.
Article 5. Types of properties with touristic purposes.
- Properties can be let as a whole or else by rooms:
- The property can be complete when the whole property is rented out, in which case no more than 15 lodgers will be allowed simultaneously.
- When the property is rented by rooms, it is mandatory for the landlord to live in the property, in which case no more than 6 vacancies can be offered, and each room cannot exceed more than 4 lodgers.
- The capacity of each property will be determined by the license of first occupation.
Article 6. Requirements and communal services.
Holiday property rentals shall comply with the following requirements:
- The property must have attained the license of first occupation.
- All bedrooms should have exterior ventilation, even if it’s to a patio, and have blinds or shutters to obscure them when necessary. There will be an exception when the property is listed as a property of cultural interest and complies with certain level of protection to be re-modelled.
- Have the appropriate furniture, appliances and utensils according to the number of lodgers per room.
- Air conditioning units fixed in each bedroom & living room when the rental period comprehends the months from May to September (inclusive) and a heating system when the rental period is offered during the months of October to April. This will not be required when the building is listed as property cultural interest and complies with certain levels of protection to be re-modelled.
All properties have till 11th may 2017 to fulfil this requirement.
- First-aid kit.
- Offer tourist information in hard copy or electronic format regarding the area where the property is located including information regarding amenities, supermarkets, restaurants, cafes, shops, parking, medical services in the area, public transport, a map of the area, and an entertainment guide of the area.
- A complaints book will be made available to the lodgers, as well as a large visible sign informing the lodgers that a complaints book is available.
- Provide a cleaning service at the start and end of every new rental period.
- Provide bed linen, towels and tableware, as well as a spare set, according to the number of lodgers.
- Provide a telephone number for any complaints or queries that can be attended immediately.
- Provide instructions booklets for all appliances.
- Inform lodgers of the internal bylaws such as pet restrictions or smoking areas.
Framework regarding the contract
Article 7. Execution of the contract and access to the property.
- The lodger will receive at arrival a copy of the contract which shall contain at least the following elements:
- Name of the person or company renting the property
- The alphanumeric registration of the Tourism Registry of Andalucía.
- The number of lodgers staying at the property.
- The dates of entrance and departure.
- The total price.
- The telephone number referred to in Article 6 j)
- At the signature of the contract, all lodgers shall provide copies of their identification document (ID or passports) in order to fill in the entrance registration book.
- A copy of the contract duly signed & dated shall be kept by the operator to be available under request of the relevant authorities during the period of one year.
- The access to the property will take place at the time agreed between the parties, however if nothing has been agreed it will be presumed that the time to check in will be at 16:00 h and the check out at 12:00 h on the day of departure. In case the owner or operator is not to be found in the property, the parties will agree beforehand on the handover of keys.
- On the check-in date the lodger shall receive instructions on the functioning of all electrical appliances and devices in the property. They shall also receive the internal bylaws of the community as well as all the keys, cards and passes that grants access to the community/property installations.
Article 8. Price and reservation.
- The offered price will be per night and all-inclusive. It shall include utility consumption (water, electricity, heating and air conditioning) as well as the cleaning service at the arrival of new lodgers. It shall also include the use of towels, sheets, bed linen and tableware. A receipt regarding any advance payments (such as deposits for reservations) shall be given by the operator/owner.
- The terms and conditions of the rental: price, reservation, and cancellation will be agreed upon the parties in advance. At the signature of the reservation a copy shall be provided to the lodger, which shall include information regarding the price, payment advances and penalizations
- The landlord or operator could request the lodger to make a reservation, this is a payment advance, equivalent to a maximum of 30% of the rent.
In case there should be a cancellation made by the lodger, the landlord or operator could retain up to 50% of the amount paid as reservation if the cancellation takes place 10 days prior to the day of entry. If the cancellation takes place less than 10 days prior to the entry, the landlord or operator may retain the whole amount.
If the cancellation is made by the landlord or the operator, he shall return the paid deposit. If the said cancellation take place in less than 10 days prior to the day of entry the lodger will be entitled to receive the deposit paid plus 30% of the agreed rent as compensation.
- If the cancellation is due to force majeure there will be no compensation or penalty applicable.
Registration at the Registry of Tourism of Junta de Andalucía
Article 9. Registration
- All operators/owners that wish to rent out their property will have to formalize the statement of compliance, having to state at least:
- Details regarding the identification of the property, including the cadastral reference, and their maximum capacity according to the license of first occupation.
- The owner’s personal details and address for official notifications.
- Details of the operator and entitlement.
- Any amendment of the abovementioned details shall be communicated to the “conserjería” responsible for tourism.
- Each dwelling will be registered before the Andalucía Tourism Registry.
- Once the property is duly registered, each dwelling will receive an unique alphanumeric code, which must appear in all publicity offering the rental of the property.
Article 10. Inspection, fines and sanctions
- The inspections services shall exercise the functions of monitoring and control of compliance of this decree, in accordance to the before mentioned Law 13/2011 and Decree 14/2003n of Tourism Inspection, notwithstanding the competence of other Public Administrations.
- Whoever commits infringement by not complying with this decree will be held liable, in which case the sanctions regime in the title VIII of Law 13/2011 shall be applied.
- The operator must facilitate the inspection.
Article 11. Clandestine activities
Any holiday property rental offered without being registered at the Andalucía Tourism Registry and without having the compliance statement filled out will be considered as a clandestine activity, this being regarded as a serious offence attracting fines that range from 2.001 to 18.000 euros along with the closing of the establishment for rentals.
 A continuous development is understood as those that are sited in a radius of 1km from the central building or office.
 This complaints book must comply with a standard format.