Questions & answers about the commercialization of touristic housing in Mallorca
• Which is the actual legal framework?
On August 1st, 2017, the Law 6/2017 of July 31 has entered into force, amending the Tourism Law in the Balearic Islands.
On Friday, August 4tt, a Law Decree is presumed to be approved which will modify some points of the 6/2107 Law and which would enter into force the week of August 7th; the aforementioned Law Decree must be ratified by the Balearic Parliament before September 4th ,2017, which does not prevent it to be already in force and therefore applicable.
• Where did we come from?
Before August 1st, it was permitted to commercialize tourist accommodation in detached houses (chalets), in semi-detached houses subject to the horizontal property regime and in single-family dwellings between party walls, provided that they are located in the same plot. Therefore it was declared compatible for these houses to have an ordinary -residential use, from the urban point of view, and an extraordinary use consisting of commercializing holiday stays in them.
• Which is the main change?
From August 1st onwards, the commercialization of tourist stays in multi-family buildings, which means in apartments or houses subject to the regime of horizontal property, will be allowed conditioned by the following cumulative requirements:
A) Zoning;
B) Proprietors’ community authorization
It also establishes the so called “main housing rental modality”, which ONLY allows the owner (private person) to market tourist stays in her/his main residence for a maximum
period of sixty (60) days a year, no matter its architectural typology. We infer that the owner must be a resident in Spain and must be duly registered to be able to accredit her/his main residence in such housing.
In any case, it must respect the two above-mentioned conditions. A time limit of 5 years is set for the exercise of the activity with the possibility of an extension. Exceptionally, the coexistence of the owner and the tourists is allowed, if so mentioned in the advertising and the number of persons is NEVER to exceed the number established in the certificate of habitability, computing the owner, her/his relatives residing with her/him on a permanent basis and the tourists.
• What is the zoning?
Holidays stays may only be commercialized in suitable declared areas (with administrative certificate). The areas shall be determined by the Insular Consells (Insular Councils) prior mandatory report by the Town Halls, except for the Town Hall of Palma, that can decide without the Mallorca Insular Consell. Until the zoning is determined, the request of licenses through the DRIAT is at a standstill.
The maximum period of 1 year, that is to say, until August 1st 2018, is set to proceed with the zoning; if within this period the zoning should not be established, responsible statements for the start of a business activity may be requested for detached houses (chalets), for semi-detached houses subject to the horizontal property regime and for single-family dwellings between party walls. Multi-family dwellings are EXCLUDED and will have to wait for the decision on zoning.
The permit will get a registry number that is essential to commercialize the housing through tourist booking channels (Homeaway, Airbnb, etc).
The determining of the zoning will take into consideration sustainability reasons (environmental, urban - territorial, access to housing, water/power supply /trash removal service).
• What role will the Owners’ Communities have?
They may decide on the use of dwellings in multi-family buildings. Thus, once the Consells and municipalities define the zoning, the only tourist stays that may be commercialized touristically are the ones that are prevented by the community foundational title or the community statutes. If the ban to commercialize the housing is not recorded, the owners’ community authorization through an agreement by double majority (votes and quotas), in first call, will be required.
In second call, the vote of the majority of the attendees is required, provided that they represent at the same time more than half of the value of the quotas of the attendees.
• What is the concept of company that commercialize tourist stays?
The physical or legal persons that touristically commercialize a whole residential housing for periods of short duration, in terms of immediate use, and forprofit purposes, without prejudice to her/his private use particular application.
• When it is presumed that an owner sells tourist stays?
If housing is commercialized in terms of immediate use, for less than the month and it cannot be credited for a different purpose other than the touristic purpose.
• What is meant by tourist booking channels / platforms?
It means, all systems by means of which individuals and legal entities, directly or through third parties, sell, advertise or provide through link or contents, booking of accommodation for tourist stays in housing (either by days or weeks always lower than a month (art. 50.13), or by providing some of the services described in article 51.
By way of example, tourist booking channels are travel agencies, reservation centers, companies mediating and organizing tourist services, including intermediation through internet channels or new technologies information systems, real estate agencies as well as inclusion of advertising in social media channels.
• What procedure must be followed to register tourist stays in housings?
The owner shall provide to the Department of Tourism the Responsible Statement of the beginning of touristic activity (DRIAT) in which she/he declares that the housing meets the technical nature requirements to be indicated later.
Competences in the field of tourism are transferred in Menorca, Ibiza and Formentera, so the presentation and resolution of the DRIAT is in the insular institution.
From the presentation in the corresponding register, it will be capable of performing the activity in question.
• Can a housing be commercialized for tourist stays before obtaining the responsibility statement for the beginning of touristic activity (DRIAT)?
Not; advertising, contracting or marketing of tourist stays without prior DRIAT is considered a serious offense which is punishable by fines from 20.001€ to 40.000.-€, notwithstanding that the activity may be suspended or the housing getting closed.
• What requirements must the housing meet?
Requires a minimum five years antiquity (the housing use during this time must have been private residential) credited through:
- New building (in construction) declaration
- First occupation license
- Municipal certifícate
A valid certificate of habitability is mandatory. The maximum number of places/persons will be specified therein.
Civil liability insurance should extend to damages to the owners’ community.
Tourist services must be offered-guaranteed (cleaning, linens, facilities and 24 hours phone service) and the community must be informed. The contract with the cleaning staff must comply with the labour legislation, Social Security and occupational health.
It is obligatory to have the energy efficiency certificate with minimum grade of F or D depending on the age of the building, although a period of adaptation of three years is set, thus until August 1st, 2020.
It is essential to also have individual meters of supplies (electricity, water, and if supplied from a public network of gas).
They must comply with the rules on sustainability and accessibility for people with reduced mobility.
• In which case housing may NEVER be touristically commercialized?
1. If an administrative sanction for serious or very serious urban development infraction has been imposed and until the urbanistic legality has not been restored.
2. The housing is on protected rural land.
3. The housing is subjected to official protection regime or appraised price.
Notwithstanding that in the future tourist stays in rooms in a private residential housing may be allowed, room rental contracts are not admitted under the Tourism Law.
• What duration will licenses for residential dwellings subjected to horizontal property have?
5 years that are extendable, without prejudice to the possibility that the Administration may agree to its conclusion if there is a cessation of tourist commercialization.
• What duration will licenses for the rest of residential housings have?
Indefinite without prejudice to the possibility that the Administration may agree to a definite closing if there is a cessation of tourist commercialization for three consecutive years.
• What obligations has the owner of an apartment in a multi-family building?
They must inform the tenants in writing about the rules of coexistence, appropriate use of the services and common facilities, and the tenants must sign receipt of such information.
Inform the Police General Directorate of the persons staying in the housing.
Ask the tourist /tenant to abandon the housing within 24 hours in case of grave alteration of coexistence or the gross breach of the community norms.
• Will owners /operators of the commercialization platforms carry responsibility?
If they publish listings of homes that have not made the responsible declaration (DRIAT) or have not showed in their advertising the tourist registration number, they will be subject to sanctions between 40.001 and 400,000.-EUR
There is a presumption iuris tantum of joint and several liabilities: housing owners + person having inserted the housing.
• Persons that hold a position in the owners’ communities will respond or be held responsible if homes are rented without licenses of the community authorization?
The law does not contemplate any regime of liability with respect to persons who have positions in the owner’s community.
• How will the Tourism Department of tourism encourage the search for possible offenders?
It has created a channel for complaints with the following email address: bustiainspeccioturistica@dgoturis.caib.es. Also, starting from the month of October, an online complaint form will be included on the website of the Ministry of Tourism.
In the year 2018, a mobile application will become available through which you will be able to check if a specific property has a valid tourist registration number.
• What effects has the law on homeowners who already commercialized tourist stays legally prior to August 1st, 2017?
The zoning and the technical requirement does not affect them, but the new sanction provisions do so.
- Inform the Police General Directorate of the persons staying in the housing.
- Mention in all their housing advertising the tourist registration number; in the absence of such number, the entry registration number granted when the DRIAT was presented to a public register, must be mentioned.
• What ROLE has the seasonal contract regulated in the LAU after the entry into force of the law 6/2017?
The LAU is only called upon regulating stays for a duration inferior to a year to persons that are not tourist since only these can prove that the purpose of the rental is not touristic.
PLEASE DO NOT HESITATE TO CONTACT ILLESLEX IF YOU REQUIRE FURTHER INFORMATION.
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