29 May 2018

Decrre of housing for touristic purposes of Andalusia.

“The Junta de Andalucía has regulated the temporary assignment of use of housing for touristic purposes, by the means of the approval of Decree 28/2016 of February 2, published in the Official Bulletin of the Junta de Andalucía (BOJA) that entered into force on May, the 11th.”

1.- Legislative Provisions.-

The Law 4/2013, of June 4th, on measures of flexibility and promotion of the housing for rental purposes modified the Law 29/1994, of November, the 24th, on Urban Leases, in which short-term rental agreements were excluded from their scope of application and were placed in a legal limbo, taking into account that by that time their sectoral regulations had not been approved yet.

Subsequently, the Junta de Andalucía regulated the temporary assignment of use of furnished and equipped properties that meet the conditions to be used immediately, marketed or promoted in channels of touristic purposes and for profit activities (housing for touristic purposes), through the approval of Decree 28/2016 of February 2nd.

The abovementioned Decree was published on the 11th of February in 2016 in the Official Bulletin of the Junta de Andalucía (BOJA), entered into force on May, the 11th.

2.- Areas of application.-

The Decree is applied to all types of dwellings (apartments, single-units, penthouses, etc.) that meet the following requirements:

  • The leasing of the property must be for lucrative purposes
  • The leased property to the same person must be for less than two-month period, in case of the leasing period is higher, the property will not be regulated by the Decree for Touristic purposes, but will be applied by another type of leasing.
  • The dwelling must have the residential use, being, thus, excluded the properties located on the rural areas, regulated by a sector-specific regulation (art. 48, Law 13/2011, 23rd December, and Decree 20/2002, 29th January, Tourism in Rural Environment and Active Tourism).
  • The leased property must not be part of a group consisting of three or more dwellings, located in the same or adjacent building, belonging to the same owner who exploits them for the same purpose. Otherwise, in this case, these will be considered as touristic apartments, instead of housings for touristic purposes, having those own regulations, similar to the hotel (Decree 194/2010 of April 20).

Therefore, we can define housings for touristic purposes as those that form part of the buildings located in soil for residential use, offered for a price on a regular basis for touristic purposes operated within the Autonomous Community of Andalucía. It will be presumed that there is usual and touristic purpose when the property is commercialized or offered in touristic channels. The concept of touristic offer channel includes any webpage that allows booking of the property and, therefore, includes the commercialization of housings through the real estate agencies that allow executing the reservation “on-line”.  3.- Registration of the property in the Registrar of Tourism of Andalucía.-

The registration of the corresponding property in the Registrar of Tourism of Andalucía became a compulsory requirement from the 11th of May, 2016. The registration must be done through the application form called “declaration of responsible “, which can be downloaded from the website of the Junta de Andalucía.

The property can only be commercialized and offered in the touristic channels once it has been registered in the referred Registrar.

Any alteration or modification of the registered information must be communicated to the competent Tourism Counseling.

The exploitation of the property will be considered clandestine without prior registration in the Registrar of Tourism; which, in fact, will constitute a serious or very serious infringement with a penalties of up to 150.000 €, both against the owner and against the intermediary.

According to data provided by the Ministry of Tourism updated on May 11th, 2018, there are nearly 20.000 properties registered for touristic purposes in the province of Málaga that supposes an offer of 103.500 places of accommodation.

4.- Requirements and services.-

 The properties for touristic purposes must fulfill, by Law, the following requirements:

  • First Occupancy License.
  • Direct ventilation to the exterior and system of darkening of the windows (blinds or curtains).
  • Have furniture for immediate use.
  • Heating and Air conditioning installation.
  • First Aid boxes.
  • Touristic information, provided in physical or electronic support.
  • Complaint and claim form, as well as the sign announcing its existence in the property.
  • Cleaning service provided at the customer´s check in or check out.
  • Bed linen or house items.
  • Emergency contact number for the customer.
  • Information regarding the use of the electronic devices.
  • Information of the Community of Owners´ regulation.

The aforementioned requirements are imposed since the 11th of May 2017.

 5.- Contract regime.-

 Prior to the delivery of the property, the contract must be signed and delivered to the lessee, containing at least the following elements: identification of the person or entity operating the property; the registration code in the Registrar of Tourism of Andalusia, the persons who will occupy the property, the price of the lease, the date of entry and exit, and also a contact number for the lessee.

The parties are free to negotiate the aspects such as leasing price, reservations, deposits, etc. Furthermore, the operating entity must provide to the lessee the proof of payment.

In case of nothing have been agreed in the contract, the check in time will be at 4pm and 12am for the check out.

6.- Inspection and sanctioning regime.-

According to the Decree, the inspection services of the Regional Ministry responsible for tourism will exercise the functions of verification and control of compliance with the provisions of this regulation (in accordance with Law 13/2011, of December 23rd and with Decree 144/2003, of June 3rd, of the Tourism Inspection).

The sanctioning regime for the infraction of the aforementioned Decree of housings for touristic purposes is included in Title VIII of Law 13/2011, of December 23rd, in which the sanctions are classified as small, serious and very serious.

According to the Decree of housing for touristic purposes, the owner of the property is the operator of the same and, hence, the responsible one for compliance with the Decree, unless its exploitation or use, as a property for touristic purposes, has been transferred to another person or entity, in which case the real estate agency operating the leasing will be the responsible for compliance with the Decree.

 7.- Tax liability.-

7.1.- Leasing of the property without business resources or services of the hotel industry:

  • Natural Person´s Income Tax (IRPF): real estate capital yield
  • VAT: tax free

7.2.- Lease of the property with workers and local without providing hotel industry services:

  • IRPF: economic activities performance
  • VAT: exempt, except in the case of sub-rentals.

7.3.- Leasing or assignment of the properties that provide hotel services: ·         IRPF: economic activities performance·         VAT: 10% Finally, it is important to point out the new control mechanism of the Tax Agency regarding the declaration of the incomes obtained from this type of leases, in particular, the model 179 “Quarterly informative declaration of the property leasing for touristic purposes” that enters into force on July 1st, 2018 (Royal Decree 1070/2017, of December 29th).  The intermediaries are the subjects obliged to submit quarterly the information model. Especially, the persons or entities constituted as collaborative platforms that mediate in the assignment of use are considered as service providers of the information society, such as Airbnb, HomeAway, Wimdu, Niumba, etc.

Estepona, May 18th, 2018.

PÉREZ DE VARGAS ABOGADOS

Written by

Javier

Pérez de Vargas Ruedas

[email protected]

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