A group of homeowners in Marbella have banned Airbnb-style lets from their apartment block following a six-year legal battle.
The Supreme Court backed the ban imposed by the community of owners and cited the latest update to the so-called Horizontal Property Law, which came into effect last week.
Among other stipulations, the law states that anyone wanting a tourist flat must get the approval of 60% of homeowners in the building. Failing to do so will give them the right to veto your licence to operate.
Neighbours can also file complaints to the courts over disturbances from the holiday lets, including noise or rubbish pollution, with a view to having them banned from the building.
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The Supreme Court decision in the Marbella case could now set a legal precedent for the entire country.
The battle began in 2019, when the homeowners’ association called a meeting to address issues arising from holiday rentals in the building, reports Infobae.
The president of the association outlined various complaints, including noise, damage to common facilities and residents feeling generally unsafe due to the revolving door of tourists whom they did not know.
The owners then voted to ban Airbnb-style rentals from the building, winning support from a strong majority of residents.
But Borenstein & Ben Avi GmbH and Viascouletre S.L., owners of several tourist apartments in the building, did not take the decision lying down, and decided to challenge it in court.
They argued that Article 17.12 of the Horizontal Property Law only allowed for ‘limiting’ the use of holiday lets, not banning them outright.
They argued the ban ‘violated their property rights’ and ‘affected their economic interests’, as the apartments were intended to be rented out to tourists for income.
A court in Marbella was first to dismiss the claim, arguing that recent legislation allowed for the prohibition of tourist rentals, given the ‘nuisance’ this activity could cause local homeowners.
It was then appealed at the Provincial Court of Malaga, which upheld the ban, adding that the word ‘limiting’ could be interpreted as ‘banning’.
This ruling was then confirmed by the Supreme Court, the highest in the land, which said the law’s scope includes a total ban on holiday apartments, as this is the most extreme form of ‘limiting’ activity.
It cited updates to the Horizon Property Law, which it said were approved to ‘regulate tourist rental activities and restrict their proliferation in residential areas.’
It declared the ban by in the Marbella building as legal because it was designed to protect the collective well-being of homeowners.
The Supreme Court insisted that within the updated law, homeowners’ associations ‘have the power to establish limitations on the use of private entities when they seek to protect coexistence and the common good.’
