Can tourists be banned from using the pool and common areas in Spain?

Everyone is talking about tourist flats in Spain at the moment. They can sometimes make neighbourly life worse, as tourists may have different schedules from the rest of the tenants in the building. Homeowners' associations are looking for many solutions to combat this type of rental. Can tourist flat guests be banned from using the swimming pool and other communal areas?

Can you ban people from using a communal swimming pool? 

"Following the reform of Article 21 of the Horizontal Property Law (LPH) by Law 10/2022 of 14 June, homeowners' associations can ban owners who have debts with the association from using swimming pools or any other non-essential facilities," explains Fernando Céspedes, property administrator at Communal.

According to the aforementioned article, "the owners' meeting may agree on dissuasive measures to discourage late payment for the time that the property remains in this situation, such as setting interest rates higher than the legal interest rate or temporarily depriving the use of services or facilities, provided that they cannot be considered abusive or disproportionate or that they affect the habitability of the property. These measures may in no case be retroactive and may be included in the community statutes. In any case, the credits in favour of the homeowners' association shall accrue interest from the time payment is due and has not been made".

In other words, the homeowners' associations may agree to deprive the defaulting owner from using recreational facilities and services (paddle tennis court, swimming pool, gymnasium, coworking, etc.). However, they cannot forbid the use of common elements essential for property habitability, such as water or heating.

Can a defaulting neighbour be prohibited from using the lift?

No, even if an owner does not pay the community fees, they cannot be banned from using the lift, as it is considered a basic or essential feature.

What about tourist flat guests?

"No, they cannot be denied the use of the swimming pool, lift and other common areas just because they are tourist flat guests, unless the tourist activity is prohibited by the homeowners' association and such prohibition is included in the association's statutes, or if there is a court ruling in favour of the association in which the court has ordered them to cease the tourist flat owner's annoying activities, due to continuous nuisance or damage," explains Fernando.

Can tourist flats be banned in a homeowners' association?

Yes, they can. To limit or prohibit tourist rentals in a homeowners' association, three-fifths of the total number of owners, who must also represent three-fifths of the participation quotas, must vote in favour. This is established in section 12 of Article 17 of the Horizontal Property Law (LPH), which was amended on 6 March 2019 to facilitate the adoption of this type of agreement, which previously required unanimity.

The Directorate General of Registries and Notaries (DGRN), in its resolutions of 16 October 2020 and 15 January 2021, clarified that this regulation simplifies the requirements for limiting or conditioning tourist rentals, although it specifies that this facility does not extend to other forms of rental, such as holiday rentals not specifically regulated by tourist regulations.

For this agreement to have a legal and binding effect, especially for future owners, it must be registered in the Land Registry. This is done using a certificate of the agreement, issued after its approval at an owners' meeting called specifically for this purpose.

Furthermore, according to the same Article 17 of the LPH, the homeowners' association is allowed to increase the common expenses by up to 20% for those owners who use their properties for tourist rentals. This increase must also be approved by three-fifths of the total number of owners and quotas, does not have a retroactive effect and is applied from its approval.