Lawyer Raymundo Larraín Nesbitt explains the new regulations governing holiday rentals just introduced in Andalusia (Decree 28/2016). He gives us an overview of the Decree in force, the requirements landlords must meet, how to register your holiday rental in Andalucia and explains the steep sanctions for non-compliance.
Register through us in only 24 hours: Registration of Holiday Homes (Andalusia)
Marbella-based Larrain Nesbitt Lawyers has over 16 year’s taxation & conveyancing experience at your service. Our team of native English-speaking lawyers and economists have a long track record successfully assisting expats all over Spain. You can review here our client’s testimonials.
Introduction
Since 2013 I have highlighted the ongoing trend in all regions of Spain to pass legislation on private holiday rentals:
• New Measures to Bolster Spain’s Ailing Rental Market
• Holiday Rental Laws in Spain
Anyone who has read my articles here will know I am not in favour of these tourist rental laws because they have not been drafted with consumer’s best interests in mind, but rather with those of the hotel industry that fought tooth and nail to regulate this sector, and thwart what they call “unfair competition”.
Spanish politicians, and particularly those in Andalusia, have taken a string of controversial decisions in the last few years in the face of an anemic post-crisis recovery (i.e. the infamous worldwide asset declaration requirement (Model 720), stringent regional Holiday Rental Laws in various Spanish regions, the empty home expropriation decree for ‘social reasons’, a disappointing ‘Golden Visa’ residency investor scheme, draconian anti-money laundering laws etc.). These laws are proving to be highly unpopular with expatriates to the point of driving many away. Unsurprisingly many town halls are reporting of late that foreign population has taken a sharp dip in their census over the last few years (for example, the Marina Alta region of Valencia has lost a third of its foreign population). Maybe some expats have chosen to live under the radar to avoid complying with Tax Model 720 worldwide asset declaration, others have simply had enough and packed their things and gone back to their home country.
If Spain had truly a modern diversified economy these unpopular laws wouldn’t be such a big deal after all, and we could shrug it off. But the sad fact is that Spain’s GDP is unhealthily over-reliant on the Tourism and Construction sectors (over 20%), and this fact, coupled with huge unemployment levels that reach alarming all-time highs in Andalusia, make for a bleak picture. Perhaps regional politicians would do well to ponder carefully on the far-reaching consequences of decisions taken on the hoof. In my humble opinion there are many countries out there that are doing a sterling job at attracting foreign investments by adopting superb fiscal measures (chiefly Portugal). Spain should take a good hard look at itself and abandon its self-complacent attitude and start embracing competitive measures that would renew the market’s interest (especially amongst British, traditionally our largest market by far). Spain has all the makings to become the hotspot; all it requires is competent down-to-earth politicians passing tax-friendly laws that attract foreign investments. Is this too much to hope for?
In February 2016, after a long struggle, Andalusia finally passed its own regional holiday rental law in the wake of much upheaval. This article serves as a gentle reminder on this new law to all those landlords who are currently letting out property in the region of Andalusia or intend to in the near future. I strongly advise to heed the guidance I provide below and not to ignore this new piece of legislation. The fines for non-compliance are very steep (ranging from £1,500 to £115,000).
Anyone who thinks the Junta de Andalucía will not hound infractors and fine them harshly is deluding himself. The whole purpose of this legislation was geared from the outstart towards sanctioning offenders as those behind it had an axe to grind. Moreover in other parts of Spain town halls are already levying substantial amounts on the back of similar new laws. They are using new technology (‘web crawlers’) that methodically and relentlessly trawl internet to come up with non-regulated rentals that are advertised over the web. Authorities cross-reference this information against their public records and unregistered properties are brought to light as a result. Not to mention that at a time where Administration’s coffers are bereft post-crisis this represents a golden opportunity to hunt, apologies, I meant raise taxes and prop up politicians’ dwindling coffers (because gold statues and palaces don’t pay for themselves you know). God bless them all.
In Barcelona, for example, in two unrelated recent cases they have levied fines of £24,000 (source) and £70,000 on the same token (source).
A positive side effect of this law will be to bring into the open all the undeclared tourist rentals. So if after reading my article you become a law-abiding citizen registering your properties to rent them out as tourist accommodations make sure you are filing and paying your Non-Resident Taxes in Spain as well! It would be a faux pas to register them and not declare and pay tax on your rental income in Spain. EDIT 11th April: newspaper article from El País: Taxman turns attention to hidden internet property rentals.
Let this article act as a stern warning to all landlords in Andalusia: The Taxman Cometh!
Andalusia’s Holiday Rental Decree
EDIT July 2017: for a simplified version of this in-depth article jump to my blog post: Holiday Rentals in Andalusia Made Easy – 3rd July 2017.
Andalusia approved on the 3rd of February this new decree which had sparked much controversy and debate. The final version has dropped some of the more contentious points but still retains many which are highly questionable in my humble opinion. Andalusia’s Holiday Rental Law was officially published in the BOJA on the 11th of February. Link to the new law:
Andalusia’s Holiday Rental Law.
The official name is Decree 28/2016, of 2nd of February of Tourist Holiday Rentals (viviendas con fines turísticos). The best way to go around it is simply analysing point by point what it establishes.
Obligation to Register your Property: as from the 11th of May 2016In compliance with this Decree, and with Law 13/2011, of Tourism in Andalusia, landlords may register as from the 11th of May 2016 onwards, day on which this new Decree will come into force. Mr. Rafael Salas Gallego, Malaga’s Tourism Director, has confirmed the registry will not be operative before the 11th of May. So landlords now have a three-month deadline to gather all their paperwork and may start registering themselves as from the 11th of May onwards before Andalusia’s Tourist Registry (or ATR going forward). The Junta de Andalucía has promised public awareness campaigns to clarify on this new law.
You can download and fill in the form supplied by the ATR called ‘Declaración Responsable’ and hand it over at one of the ‘Delegaciones Territoriales de Turismo‘ once completed. Registration is free unlike in other regions of Spain.
If your command of Spanish is low, you can hire a lawyer to do this on your behalf in exchange of a reasonable fee.
Excluded PropertiesThe following properties are excluded from being regulated by this decree:
• Properties which are lent to friends or family without an exchange of money (free).
• Properties that are let to the same individual for a continuous period of time exceeding two months. In which case it will be regarded as a standard rental agreement subject to Spain’s Tenancy Act. More details in my in-depth article: Spain’s Tenancy Act (LAU).
• Rural properties, located in what is legally classified as rural land, are expressly excluded as they are subject to their own legislation: Decree 20/2002. I have covered this in an in-depth article: Andalusia’s Holiday Rural Rentals.
• Landlords, or property management companies, that own or rent three or more properties, personally or through corporate structures, each located within a radius of 1 km from the reception office in the same unit (i.e. building, urbanization, condominium) will be excluded from this new decree (this is very bad news). They will be subject to the much harsher Decree 194/2010 (Apartamentos Turísticos) which basically equates these properties to a hotel. This has very serious restrictions on use i.e. landlords cannot use the property themselves for more than two months a year, they must cede the management of the units to a professional company for a minimum period of ten years etc.
Definition of Holiday Rental – What Properties are Included
The decree is rather vague on this point. Any property that complies with the following points will fall under the remit of this new regulation:
• The property is located in land classified as ‘residential’ (in other words, rural and tertiary land are excluded as they are each subject to their own legislation on rentals).
• The property is rented out to tourists regularly on a short-term basis (days, weeks, months).
• Reservation system is enabled. Reservations can be made.
• The property will be regarded to be rented out touristically when the landlord advertises it using specialized media. By specialized media it is understood companies who intermediate between landlord and tenant in exchange of a commission such as: travel agencies, real estate agencies, holiday rental websites (i.e. Airbnb, HomeAway, Tripping, Tripadvisor, Flipkey, VRBO etc.).
Examples of Private Holiday Rentals
All the following landlords fall under the remit of this new law and must comply with its terms or face hefty fines.
1. Mr. Raistlin Majere, and loving wife Claire, own a duplex in a beachside urbanization in Estepona and rent their property out three months a year advertising through HomeAway and similar niche websites. 2. Mr. Aedan Cousland owns a luxury villa in Benahavis, Marbella, which he rents out to affluent Arabs only during the summer season for a substantial return. He advertises only through upscale real estate agencies. 3. Mrs. Morrigan Flemeth and husband Alistair own and live in a Guest House in Fuengirola renting out rooms to tourists all year round. They advertise over internet. 4. Mr. Loghain McTir, UK resident, owns and rents three high-end properties through a management agency. Two of the properties are located frontline in Puerto Banús and the third one in the prestigious Sierra Blanca estate.
Rental Types Properties can be let as a whole or else by rooms (like in a Guest House). If it’s the whole property that is being rented out, no more than 15 lodgers will be allowed simultaneously at any time (think of a large villa). If the property is being rented out by rooms, it is mandatory the landlord lives in the property himself. No more than 6 vacancies can be offered and each individual room cannot exceed four lodgers.
Lodging Requirements
Some requirements from the draft decree have been dropped i.e. wi-fi; which is now a moot point as it is no longer required.
• The property must have attained what is known as a Licence of First Occupation (LFO, for short). It is also known in some parts of Spain as First Occupancy Licence, Habitation Certificate, Habitation Licence, Licencia de Primera Ocupación, Cédula de Primera Habitabilidad, Cédula de Habitabilidad or Cédula de Ocupación. A LFO is a licence issued by the town hall (ayuntamiento) once the building works have been completed, which allows the purchaser to dwell in the property legally. The property developer is responsible for applying for this licence, once the Certificate of End of Construction has been issued. It ensures the property is above board complying with all planning, health & safety and disabled access laws both at a national and regional level. It is also very important as it is required by utility companies to supply the property with water, electricity, gas and telephone connection.
• Rooms must be ventilated and have blinds or shutters to obscure them when necessary.
• Rooms will have the appropriate furniture required for use by lodgers and in proportion to the number of lodgers per room.
• Air conditioning unit affixed in every bedroom including living room (as a fixed fixture, not as a portable device unit) when the property is offered between the months of May and September (inclusive). Landlords will be given one year to adapt the rooms to this requirement as from the time this law is passed (11th of May 2017).
• When properties are let during the winter season (October through to April, inclusive) a heater must be made available in every bedroom including living room (as a fixed fixture, not as a portable device). Landlords will be given one year to adapt the rooms to this requirement as from the time this law is passed (11th of May 2017).
• First aid kit.
• Landlord must provide physical or electronic brochures of the closest amenities, medical treatment facilities, parking spaces, restaurants, shopping centres as well as plans that detail use of urban transport, map of the surrounding area and general tourist guides.
• A complaints book will be made available as well as installing a large visible sign informing lodgers that a complaint book is available. Sample complaints form click here.
• Mandatory cleaning service at the start and end of every new accommodation.
• Clean sheets and bed linen as well as supplying a spare set.
• Provide lodgers with a working contact phone number of person to be held accountable for any complaint or query raised so the situation is addressed immediately.
• Provide instruction booklets to use household and kitchen appliances.
• Inform lodgers on property use restrictions (such as no smoking areas or pet restrictions) as well as on Community of Owners internal bylaws.
Holiday Rental Agreement & Registration Form
i. Holiday Rental Agreement
• It will have the details of the landlord, including a working telephone number as outlined in the previous section above to address complaints, the property’s unique alphanumeric code on being registered at the Junta de Andalucia, the reservation dates (arrival and departure dates), numbers of lodgers and total price of the holiday rental.
• If the agreement does not specify it, it is presumed the rental starts at 16.00 and ends at 12.00pm.
• The landlord, or person designated by him, will show the lodgers around explaining how the kitchen and household appliances work as well as providing them with security cards and access codes to the premises. If the tourist accommodation is included in what is known as a Community of Owners, the landlord must supply his guest a copy of the internal bylaws ruling the community so he adheres to them during his lodging.
• A copy of the signed Holiday Rental Agreement will be stored by the landlord for up to one year to provide it for inspection by the relevant Authorities.
ii. Registration Form
• All lodgers, not just the one making the reservation, will be fully identified in compliance with current Security laws (popularly dubbed as ‘Gag’ Law). Lodgers will supply a copy of their personal ID/passport. Like in hotels, all guests will be required to fill in and sign a registration form on entry. In compliance with art 7.2 this registration form must be then sent to the Police or Guardia Civil for every guest over the age of 16 years old within the next 24 hours of the accommodation following Security Laws from 2003 (Orden INT/1922/2003, de 3 de julio, sobre libros-registro) and from 2015. You can send a copy of the filled in and signed registration form personally, by fax or else by e-mail. Registration forms are standardized by law; click here for a sample copy.
• Online registration: follow this link to submit by e-mail to the Guardia Civil a copy of your completed Registration Form. Alternatively you can also use this other link (scroll down for the links).
• Registration forms must be stored by landlords for a period of up to three years for the inspection of the Security Forces.
Price and Reservation
• Price offered will be per night and all-inclusive. This means it must include all the following: utility consumption (water, electricity, heating, A/C), cleaning of (bed)room at the start and end of every new lodging, clean bed linen, taxes. The bill will give a detailed breakdown of all expenses including any extras requested by the guest (like in hotels).
• It is compulsory for a landlord, or person designated by him, to hand invoices to a guest for every payment made including the initial reservation fee (even if it is just for one night’s accommodation).
Following article 8.2, and for the avoidance of doubt, landlords can decide freely upon the rental terms on the following points (so long as the tenant agrees): price, bookings, reservation deposit and cancellations.
If a landlord does NOT word these terms in a short-term tenancy agreement then by default the following rules will apply:
• Unless agreed otherwise, the maximum reservation fee is 30% of the total price.
• If cancellation of the reserve is done over ten days in advance the landlord can pocket 50% of the reservation fee in compensation.
• If the cancellation is done under 10 days then the landlord is entitled to pocket the full amount of the reservation fee.
• If it’s the landlord that cancels he may do so without penalty over ten days in advance.
• If the landlord cancels under ten days he must pay a compensation to his guest of 30% of the final agreed total price.
• If the cancellation is due to a force majeure, then both landlord and guest are exempt of awarding compensation. Examples of such admitted by law courts are flash floods, earthquakes, strong winds, general strikes.
How to register your holiday rental in Andalucia – Inscription before Andalusia’s Tourism Registry (ATR)
All landlords that wish to rent out their properties in Andalusia must register their property before the ATR.
You can self-register here (as from the 11th of May 2.016 onwards):
Enrolment at Andalusia’s Tourism Registry.
Download, print and fill in the form supplied by the ATR called ‘Declaración Responsable para el acceso o ejercicio de la actividad‘; specifically the annex on page 7. Once done, hand it over physically at one of the ‘Delegaciones Territoriales de Turismo’ in the region where your property is located. It can also be completed online if you have a digital certificate enabled. Unlike in other regions of Spain registration is free in Andalusia.
You will need to supply the following details:
• Property details, cadastral reference, number of potential guests according to its Licence of First Occupation.
• Landlord’s personal details and an address for official notifications.
• Details of management agency or designated person if landlord appoints someone to act on his behalf. Any change in details must be communicated so the ATR remains accurate at all times.
• Details of this inscription will be passed on to the local town hall.
• Once the property is duly registered before the ATR each dwelling will be assigned a unique alphanumeric code which – by law – must appear in all publicity offering the property to let (art. 9.4) i.e. internet webs, estate agency brochures, glossy magazine rental advertisements etc.
You will then be assigned a unique alphanumeric code i.e. VFT/MA/00001.
It goes without saying that any property let in Andalusia that does not sport said unique ATR code will be easy to spot and may result in heavy fines.
Fines and Sanctions
They are divided into three categories:
a.- Light offence. Can be either a written warning or a sanction with fines up to €2,000.
b.- Serious offence. Sanctioned with fines ranging from €2,001 up to €18,000. The premises may be shut down temporarily at the authority’s discretion (for periods less than 6 months), the rental licence may be revoked temporarily.
c.- Very serious offence. Sanctioned with fines ranging from €18,001 up to €150,000. The premises may be shut down temporarily at the authority’s discretion (for periods spanning between 6 months to 3 years), the rental licence may be revoked indefinitely.
If the landlord is sanctioned two or more times for very serious offences within a three-year period, the property will be struck off the ATR indefinitely.
Statutory Limitation of Sanctions
• Light offences: six months.
• Serious offences: one year.
• Very serious offences: two years.
The statutory limitation starts as from the time the sanction is imposed by the Administration. The time can be interrupted by the initiation of legal proceedings. If the administrative procedure is paralyzed for more than one month for reasons unrelated to the offender, the statutory limitation will be renewed once again (eventually time-barring the sanction).
Clandestine Activity
If the Authorities catch you red-handed renting out a non-declared property (that is not registered at the ATR) this will be regarded as a serious offence attracting fines ranging from £1,500 up to £14,000.
Conclusion
If you own property in the region of Andalusia and plan to rent it out as a tourist accommodation make sure your property is first registered before the ATR. Do not chance it thinking they won’t catch you as one of the requirements to advertise rentals is to publish the unique alphanumeric code supplied by the ATR in all advertisements (article 9.4). Any offering made going forward that lacks said ATR code and you will be done for. Let alone the unbridled use of web crawlers to hound non-compliers which is proving most effective.
Bottom line, always be on the right side of the law. Hire a lawyer to ensure your property is registered to let and fully compliant with all the minutiae. Ensure you acquire all the gadgets the Andalusian law requires for each room listed above (A/C units, first aid kits etc) to avoid sizeable fines. And to close, do not forget to declare and pay tax in Spain on your rental income (you can read my article Non-Resident Taxes in Spain for more information on your tax liabilities as landlord).
“Politics: the art of creating new problems where none existed.”Registration fees (per property): on application
Larraín Nesbitt Abogados, small on fees, big on service.
Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.
Legal services Larraín Nesbitt Lawyers can offer you
- Registration of Holiday Homes (Andalusia)
- Holiday Rental Accounting Service (HRAS)
- Land Registry Search (Nota Simple)
- Rentals
- Fiscal Representation (Non-Resident Income Tax)
- Renting in Spain: Top Ten Mistakes – 8th of June 2011
- Let-to-Buy in Spain: The Smart Choice – 8th of April 2012
- Letting in Spain: The Safe Way – 10th of October 2012
- New Measures to Bolster Spain’s Ailing Rental Market – 8th of July 2013
- Tenant Eviction in Spain – 8th of June 2014
- Holiday Rental Laws in Spain – 8th of March 2015
- House Hunting in Spain – Interview with The New York Times. June 2015
- Resurgent Spain: Málaga Sees Strong Sales – Interview with Mansion Global (The Wall Street Journal). December 2015
- Non-Resident Taxes in Spain – 8th December 2015
- Holiday Rental Laws in Andalusia (Decree 28/2016) – 8th of February 2016
- Decree 20/2002: Andalusia’s Holiday Rural Rental Decree – 8th of April 2016
- Urban Rental Law in Spain – Spain’s Tenancy Act – 8th May 2016
- Buying Property in Spain – 10 Reasons to Hire a Lawyer – 8th November 2016
- Renting in Spain – Landlord’s Taxation – 8th of January 2017
- Renting in Spain: Non-Resident Landlord’s Rental Tax Relief – 14th of January 2017
- Buying Property in Spain from a Private Seller (Resale Property) – 21st of February 2017
- Buying Property in Spain from a Developer (Off-Plan Property) – 8th March 2017
- NIE Number Explained – 8th May 2017
- Community of Owners in Madrid to ban Holiday Rentals – 29th of June 2017
- Holiday Home Taxation in Spain – 8th of July 2017
- How to inspect an off-plan property overseas – Q&A with The Sunday Times. July 2017
- Holiday Rentals in Andalusia Made Easy – 3rd July 2017
- Holiday-home lettings: Do NOT register with Andalusia’s Tourism Registry unless you are fully compliant – 21st of July 2017
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. No delusional politician was harmed on writing this article. VOV.
2016 © Raymundo Larraín Nesbitt. All rights reserved. THE VIEWS EXPRESSED ARE THE AUTHOR’S ALONE
ben walby says:
Great article thanks. I undertsand the need to try and regulate the industry (to a certain extent), but this has been ill thought out. A/C in every room is surely in direct conflict with CO2 emission reductions ratified by the EU ?? People leave it on all day, whether in or not, as they are not paying the electricity bill. Also, large chucks of Spain (Cádiz province for example) have properties built that are accepted as ‘irregular’ by the Town Halls, but do not have an LFO (Licence of First Occupation). Are these therefore not compliant with the new decree and unable to be rented ??
What are the rules surrounding rural property rentals and why are they different ??
How is compliance ever going to be checked, with millions of individual properties, not only initially, but from year to year ??
When will it be officially published and what is the date by which you must comply ??
This seems to have taken an age to be decided, yet is still full of holes – don’t you just love Spain !!
Raymundo Larraín Nesbitt says:
Hi Ben,
Thank you for your kind words.
Addressing your multiple queries:
A/C in every room is surely in direct conflict with CO2 emission reductions ratified by the EU ??
I am not an expert in ecological legalities, sorry. What I do know, is that this new law makes it mandatory to have A/C in every room, including a living room, yes, as a fixed feature not as a portable device. Landlords will have one year to adapt to the new law as from the time this new law is published at the BOJA officially (which it still hasn’t). I have used for my article the final approved law that will be published soon.
Properties without a Licence of First Occupation (LFO). Are these therefore not compliant with the new decree and unable to be rented ?
You are correct, properties that lack the mandatory Licence of First Occupation (LFO) categorically cannot be rented out as tourist accommodations. In fact, the whole purpose of this licence, as its own name implies, is to determine whether a dwelling is fit for human habitation. A property that has not attained a LFO should not be lived in, let alone rented out. This is nothing new and should not comes as a surprise as I have already been highlighting it in all my articles since 2005:
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
“5. You will not be able to let the property, at least legally.”
Yes I am aware there are dozens of thousands of illegal properties in the province of Cadiz. None of them can be rented out as tourist accommodations – unless they manage to attain a LFO.
What are the rules surrounding rural property rentals and why are they different ??
This is unrelated to the article at hand, sorry. Regarding your query on rural properties they are already subject to their own regulation in Andalusia and this new holiday rental law simply reminds us of this fact; this is not a novelty. I cannot go into detail on what the regulation is for rural lettings as I would be overextending myself and it is not really the point of the above article which only rules on residential property, not in rural land.
Articles 40, 48 and others of Andalusia’s Tourist Law (Law 13/2011) already made it clear five years ago that rural lettings were subject to their own regulation. This new decree from February 2016 does not change that and merely reminds us of this fact by stating that rural properties are excluded from its regulation. Nothing new.
The law in Andalusia for ‘Viviendas de Alojamiento Turistico Rural‘ (rural lettings) is mainly Decree 20/2002 (there is also another other law on the matter). Anyone who lets out properties in rural land should have already lodged their properties before the ATR by 2003!
http://www.juntadeandalucia.es/boja/2002/14/1
http://www.juntadeandalucia.es/boja/2003/189/2
How is compliance ever going to be checked, with millions of individual properties, not only initially, but from year to year ??
You are right, it cannot be done, there is not enough manpower; besides it would be illegal. Controls will be set randomly. The European Union expressly forbids a pre-control as it would go against its founding principles of freedom of movement, capitals etc.. EU Directive Bolkstein 2006/123 forced Spain to adapt its internal regulation to it. This translates in practical terms to eliminate red tape and allow people to set up their own business (i.e. rentals) with as little admin hassle as possible. All that is required is a ‘declaracion responsable‘ which means that you as a landlord self-certify that you are fully compliant with this new law, under your own personal responsibility (similar to self-certified mortgages), and then you fill in the form before the ATR. Once the ATR issues you your own unique ATR code (alphanumeric) you are good to go and may start renting out to tourists. End of story. Make sure you declare your rental income in Spain and pay Spanish Income Tax as detailed in my article: Non-Resident Taxes in Spain
http://www.spanishpropertyinsight.com/2015/12/08/non-resident-taxes-spain/
As I write, controls will be random and out of the blue an inspector may appear one day – without previous notice – to ensure you are fully adherent with this new law. If you are not, you will be fined. An interesting matter is that personal domiciles cannot be trespassed in Spain, so the inspector would require the permission of the tenant to inspect the premises. (constitutional right no less) … lawyers will surely use this as a weapon when we cross that bridge with the Junta’s inspectors.
When will it be officially published and what is the date by which you must comply ??
The Decree was published today, 11th of February 2016:
http://www.juntadeandalucia.es/boja/2016/28/6
I trust I have answered all your questions.
Regards
Jeffrey says:
Great article!
I also have two questions.
I need to fill in a form on this link (http://www.juntadeandalucia.es/turismoydeporte/opencms/areas/oficina-virtual/buscador/?ov-area=1&ov-familia=8&ov-aplicacion=15&ov-texto=&offset=0&max=&total=) but then I see a row of documents. Which one should I use exactly?
Apart from that, we rent out an apartment in La Nogalera in Torremolinos, which is an apartment complex built in 1965. Our lawyer said back then an LFO wasn´t issued – it simply didn´t exist. We completely renovated the apartment so everything is up to standard but what if we don’t have an LFO because it simply wasn´t issued back then? Or is our lawyer making this up?
Raymundo Larraín Nesbitt says:
Hi Jeffrey,
Thank you for your kind words.
I have amended my article, following public declarations from Malaga’s Tourism Director. Specifically the following:
“Obligation to Register your Property: as from the 12th of May 2016
In compliance with this Decree, and with Law 13/2011, of Tourism in Andalusia, landlords may register as from the 12th of May 2016 onwards, day on which this new Decree will come into force. Mr. Rafael Salas Gallego (Malaga’s Tourism Director) has confirmed the registry will not be operative before the 11th of May. So landlords now have a three-month deadline to gather all their paperwork and may start registering themselves as from the 12th of May onwards before Andalusia’s Tourist Registry (or ATR going forward). The Junta de Andalucía has promised public awareness campaigns to clarify on this new law.
You can download and fill in the form supplied by the ATR called ‘Declaración Responsable’ and hand it over at one of the ‘Delegaciones Territoriales de Turismo’ once completed. Registration is free unlike in other regions of Spain.
If your command of Spanish is low, you can hire a lawyer to do this on your behalf in exchange of a reasonable fee.”
Bottom line, you cannot register before the 12th of May 2016 because, in his own words, the registry will be inoperative.
No your lawyer is telling you how it is (the truth). Back in the 60’s there were no LFOs. It’s a 2000 thing.
However you may request from your town hall what is known in Spanish as a ‘Cédula de Habitabilidad’ which for practical intents works much in the same way as a LFO; allowing you to register before the ATR and rent out.
Hope that helps.
Regards
John says:
What a wonderful, well written, and throughly researched article. Bravo!
Maybe you can offer some advice just so I can be somewhat sure I’m doing the right thing?
I rent a home in-land near Coin. I legally rent this home on a standard rental contract and the home owner has stipulated in the contract that when I’m away I’m allowed to sublet it for a profit. I live full time in The Netherlands and enjoy an escape from the harsh winters there. But since I’m not here in the summers, I rent out the home just a few times a year. The home is located well outside of town and on a working farm. I’ve also only had the home one full year and this was the first time the home (which is ten years old) has ever been offered for rent of any kind so it’s certainly not registered for touristic use.
Questions:
Will I need to register anything since I’m not the owner of the home and the landlord doesn’t benefit from any income I make?
Should I have the landlord register the home for me even though he will never receive any income from short term rents?
Also, from reading your other articles, it doesn’t look like there’s an answer to where I would pay tax on this income. Since I am not a resident and I do not own this home, I pay my taxes on the income in Holland. But would I have to pay some tax here?
I hope you like a challenge and thank you in advance!
Raymundo Larraín Nesbitt says:
Hi John,
Depends of the challenge, I try to keep a low profile but clearly it isn’t working for me.
Thank you for your kind words, all undeserved, but appreciated nonetheless.
You raise some good points.
First of all the property, from what you write, is located in rural land. Rural properties are expressly excluded from this new Decree 28/2016. Rural lodgings, such as the one you sublet on summer, falls under the remit of Decree 20/2002:
http://www.juntadeandalucia.es/boja/2002/14/1
I will be forced to write an article on it seeing how many people are unfamiliar with this fourteen-year-old law that rules on rural lettings.
As for paying tax, yes YOU, not your landlord, must file and pay tax on your rental income in Spain (not in the Netherlands). I advise you to read my article on the matter: Non-Resident Taxes in Spain.
http://www.spanishpropertyinsight.com/2015/12/08/non-resident-taxes-spain/
As for registration before the ATR, it is mandatory since 2002. The law allows yourself, as subletter, to register before the ATR your subletting rural rental business. Just follow the link I supply for residential tourist rentals and follow the instructions.
Hope that helps.
Regards
mike says:
And if the property has central air conditioning (distributed in ductwork throughout the property) rather than a fixed appliance in every room it would also not meet the letter of the law.
The Spanish seem not to want tourists that prefer villa holidays, nor the money they spend or the tax paid by the landlords.
Hello Portugal
Raymundo Larraín Nesbitt says:
Hi Mike,
I would imagine that central air conditioning would suffice, yes. Prior drafts to this decree demanded every bedroom have a temperature of 19 degrees. Frankly I cannot imagine them turning down someone or fining them on having central air conditioning, it would be daft.
Regards
Mijar Golf says:
Raymundo,
Great blog and very useful information. We are ATR registered and will soon install the Air Conditioning (AC). Some contractors state that sensors (To turn off AC if no movement in the room for a period of time) and door contacts to ensure all doors and windows are closed before AC can start are illegal. I can’t find anything on this.
Do you have a view.
Cheers Brendan
Raymundo Larraín Nesbitt says:
Morning Brendan,
Thank you for your kind words.
I have never heard of this before, so I am unable to comment. Sorry.
Regards
Mijar Golf says:
Thanks Raymundo.
I am in Spain next week and will contact a lawyer my sister in law used for some direction.
I;ll let you know his opinion
Cheers
Brendan
Linda Fowler says:
I’d like to know about rural property rental rules too – what is the definition of rural, and what are the rules?
Re wifi – you say the requirement to have it in “every room” has been dropped but it is still a requirement to have wifi at the property?
Raymundo Larraín Nesbitt says:
Hi Linda,
The law in Andalusia for ‘Viviendas de Alojamiento Turistico Rural‘ (rural lettings) is mainly Decree 20/2002 (there is another other law as well which I list below). Anyone who lets out properties in rural land should have already lodged their properties before the ATR by 2003! To answer your question I would need to write up a new article specific of rural lettings on a law that was passed 14 years ago (in 2002). This really escapes the object of this article above which only focuses on residential tourist accommodations (not on rural ones). In any case the hotel industry is only concerned on competition in residential areas, not on rural areas, so they have not received much ‘love’ from inspectors (fines et al).
http://www.juntadeandalucia.es/boja/2002/14/1
http://www.juntadeandalucia.es/boja/2003/189/2
Regarding wi-fi, this used to be a contentious requirement in previous drafts of this new law which I analysed and criticized bitterly in my articles at the time as it was plain daft:
http://www.spanishpropertyinsight.com/2015/03/06/explaining-the-latest-changes-to-spains-rental-laws/
This wi-fi requirement has been dropped from Decree 28/2016. Or at least I cannot find a trace of it in its listed requirements. So the reply to you is that the Andalusia Holiday Rental Law (AKA Decree 28/2016) does not require wi-fi in every room or even at the property. For the avoidance of doubt, wi-fi is no longer required anywhere in the property (in Andalusia).
I trust that addresses both of your queries.
Regards
Susan says:
Thank you so much for the excellent article. I have been waiting for the publication of the decree in the hope that I would not fall under it. I have no problem complying with the regulations and already do so for most and I pay all my taxes. However despite being fully connected with all utilities, IBI etc, for 10 years our apartments have not been issued with our LFO due to the malaise of Marbella. I do use Homeaway for the few summer months I rent out but no commission takes place, only an annual fee for a page. Also I only advertise for a few months of the the year so it’s not regularly. I won’t risk not registering but wonder if I might not be liable anyway?
Raymundo Larraín Nesbitt says:
Hello Susan,
Thank you for your kind words.
I am sympathetic towards your predicament.
Marbella is my home town, where I was born, and where I practice. So I understand perfectly well your frustration.
Unfortunately it falls on me to confirm that your property does indeed fall under the remit of this new law. As you lack a Licence of First Occupation (out of no fault of your own) you do not meet the basic requirements to register your property before the ATR. In other words, you cannot rent out your property legally.
If they catch you red handed (what the law calls ‘clandestine activity’), and that’s a big ‘if’, they may slap you a fine ranging from £1,500 up to £14,000.
You cannot advertise this property without the ATR code or you will get caught eventually (this breaches article 9.4 of this new Decree 28/2016).
You don’t have to advertise regularly to fall under this law, one day rental suffices. Any brokerage such as HomeAway will be expressly targeted by this new regulation. The very fact you are using HomeAway for your tourist rental already makes your property fall inside this law.
I ignore the exact details of your property but is it not possible for yourself to hire a lawyer and attain the LFO on your own? Many have done this in the past. Perhaps you have been caught up in the recent annulment of Marbella’s 2010 Master Urban Plan (PGOU)? That will be sorted out in two or three years from now.
I am sorry I cannot be of more use to you Susan.
Regards
Susan says:
Many thanks for your reply and advice. Our community is actively seeking our LFO but if you think it would be possible to attain this privately, are you able to discuss further and if so how should I make contact?
Raymundo Larraín Nesbitt says:
You are welcome Susan.
Following what you write, it would have to be your whole Community that attains it, not just you privately.
Some owners of detached houses can apply for a LFO privately (individually) through the town hall’s Planning department. But in your case, as your property belongs to a community, then all of you must apply for it (in a coordinated effort).
As I write in my article of LFOs from 2005, some developments are so large that several LFOs must be attained for each of the different phases that make a development:
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
Regards
Jens says:
Hello Raymondo and many thanks for your excellent articles and repies here. It’s very rare to see such a complicated legal situation explained so clearly.
It’s not your fault that the rules are so difficult to comply with; at least you help us greatly to understand the situation.
We bought an apartment in Nerja (definitely residential area, I would think) recently, and have fitted it out for the occasional renting out to friends and colleagues, but may now have to give this up (except for agreements entered into before the act comes into force in May(?)) unless we find a way through this jungle of red tape.
You’ve made me understand that even though we do not advertise in any media or use a middleman, we will be covered by the new act, because Art. 3, par. 3, doesn’t limit the scope of the law, it is as described in Art. 3, par. 1. Too bad, we were putting our faith in that.
We don’t mind paying our taxes, in fact we intend to declare our rental income both in Spain and in Denmark, and we hope to be able to comply with the rules of the act (though the one about aircon/heating is quite a problem for us.)
Will our declarations of rental income and our notification to the guarda civil regarding the passport nos etc. of our guests be sure to alert the relevant authorities to the fact that we rent out without the registration an LFO or equivalent – and until the formalities have been complied with without a registration for tourist rental?
Our apartment is in a building from the 70’es, so there is no LFO and no possibility of getting one, if I’ve understood you correctly. Can we ourselves apply for a cedula de habitation, or does this have to be done collectively by the community of owners in the building? This would certainly take a lot of time, probably having to wait for next year’s AGM…….
Thank you in advance for two more good answers.
Regards
Jens
Raymundo Larraín Nesbitt says:
Morning Jens,
Thank you for your kind words.
Informing the Guardia Civil has no bearing on taxation. Registering before the ATR will trigger an automatic inspection by the Authorities to see if you are compliant with this Decree.
Without a LFO you can not register. The town hall can provide you an alternative document for registration purposes before the ATR.
Regards
Susan says:
Many thanks for your reply and advice. Our community is actively seeking our LFO but if you think it would be possible to attain this privately, are you able to discuss further and if so how should I make contact?
Michael Ashworth says:
As we pay non-residents tax on the assumption we are letting out our properties (which we aren’t), perhaps it’s too much to assume that this will no longer be necessary?
Raymundo Larraín Nesbitt says:
Morning Michael,
I am afraid it is too much to assume, yes. But I suspect you already knew this before asking.
I explain Non-Resident Taxes in Spain in detail in this article:
http://www.spanishpropertyinsight.com/2015/12/08/non-resident-taxes-spain/
Regardless of the approval of this new holiday rental law in Andalusia, and irrespective on whether you do NOT rent out your property, you will still be expected to pay on an annual basis your Non-Resident Income Tax. Self-quoting myself:
“1. Not renting out property
“Hang on, does that mean I get taxed on Income despite not renting out my Spanish property?”
Yes. This is a frequent question. It is a legal fiction whereby it is surmised that you derive some form of financial benefit from your Spanish home; that is why it is called non-resident imputed income tax as it is deemed. Spanish authorities take the view an owner derives a benefit in kind from owning property irrespective of whether it is true or not and taxes it accordingly. It is a fixed annual fee.
i) Resident in E.U. or E.E.A.
Tax rate: 20%
Tax relief: not applicable.
Dates: to be paid before the 31st December of each year. If you buy a property mid-year, you are only liable to pay in proportion to the months you have owned the property (pro rata).
Tax form: 210.”
Hope that helps.
Regards
Jenny says:
Finally a clear & concise appraisal of the new Decree, thank you.
Our home is in Benahavis, could you advise on where we have to go to register our property, and whether we have to do it in person or can instruct a lawyer to do it on our behalf. We won’t be visiting until the first week in May, and are only there for a week.
Raymundo Larraín Nesbitt says:
Hi Jenny,
Thank you for your kind words.
You can self-register on the following link if your command of Spanish is high:
http://www.juntadeandalucia.es/turismoydeporte/opencms/areas/oficina-virtual/buscador/?ov-area=1&ov-familia=8&ov-aplicacion=15&ov-texto=&offset=0&max=&total=
You must supply all the documents listed in my article. Or else you can hire a lawyer to do it on your behalf.
Regards
Jill says:
Many thanks indeed for all your clear and helpful advice. I have all ‘owner’ documents needed and have asked our Town Hall several times over the past couple of years if I can register my rural house for letting (Decree 20/2002 .. only a few summer rentals). Each times I have been told they know nothing about it. Could you tell me where you think I should go should I go from here?
Raymundo Larraín Nesbitt says:
Hi Jill,
You are welcome.
A rural letting is not registered before a town hall, that is why they are clueless.
You must register it before the ATR (Andalusia’s Tourist Registry) following Decree 20/2002.
You may self-register on the following link:
http://www.juntadeandalucia.es/turismoydeporte/opencms/areas/oficina-virtual/buscador/?ov-area=1&ov-familia=8&ov-aplicacion=15&ov-texto=&offset=0&max=&total=
Regards
Jane Bullock says:
Thanks for such an informative thread. Do you have a link which explains Decree20/2002 in English ?
Kind regards
Raymundo Larraín Nesbitt says:
Hi Jane,
You are welcome.
I haven’t written an article on it, no. But I take note as I am gathering from many people’s queries that Decree 20/2002 is little known by landlords with rural lodgings in the region of Andalusia.
Regards
Daniele says:
We have a villa that has been built in the late 70’s. We bought it in 1980. Then there was an amplification that got legalized in the year 2006 (14 years later).
Is there any way we can get a LFO or some equivalent document such as “cédula de habitabilidad” ?
Thank you for your advice
Raymundo Larraín Nesbitt says:
Hi Daniele,
LFOs did not exist back in the ’70s!
Yes, for old properties, such as yours, you can request from your town hall an equivalent document (“cédula de habitabilidad”).
But first you need to hire a professional, such as a technical architect (also known in Spanish as ‘aparejador’) who will draft a ‘Certificado técnico de habitabilidad’. This document basically says the property may be dwelled, it is safe and complies with all legalities. Once you have this document you can now visit your town hall’s planning department and request from them a “cédula de habitabilidad”.
The “cédula de habitabilidad” will serve as a LFO for the purposes of this law.
You are welcome.
Regards
Daniele says:
Thank you so much…. do you have an office in Marbella
Raymundo Larraín Nesbitt says:
You are welcome.
I’m completing a Master of Laws (LL.M.) and will open an office in Marbella by this summer, yes.
Regards
rojoybago says:
hey, that’s freat – let us know the details !! you’ll be very busy !!! thanks a lot !!
Nicholas says:
Hello Raymundo,
If a property is already registered, we’ve had a casa rural CR/ number for several years, does it need re-registering.
Thanks for your help.
Raymundo Larraín Nesbitt says:
Hi Nicholas,
No, it wouldn’t be necessary. The ATR should still have record of your rural letting.
Besides, all this talk in the tabloids on large fines et al are really aimed at residential land, not at rural lodgings.
Anytime.
Regards
Ulf Norberg says:
Thanks for the very nice summary!
I do rent out, and do pay the rental tax alredy. So the plan is to Register!
I have two questions!
1) I can se that you are not allowed to rent out more than two months period, to the same tenants, with this new registration law!
So will it be impossible…to rent out, lets say a 4 months period, to the same tenants? (this happens in the winter times)
Or can it be possible to NOT register for short term, and ONLY let out for two months plus….?
2) I have not fully understood the payment rules…and the cancellation payback. This does not happens often, but I need to know, since all should be there in the Rental Contract.
Will it be possible to: Take a 30% payment at the booking date, and the rest…70% some weeks before the rental period begins?
The cancellation…is it 50% of the toal rental cost back…if the tenants cancel the booking 11 days or more before it starts?
And 30% of the total…if 10 days or less….
BR
Ulf
Raymundo Larraín Nesbitt says:
Morning Ulf,
Thank you for your kind words.
Query 1: I don’t see why not. You can rent out for 4 consecutive months to the same tenant, but it will not fall under the remit of this law. It falls under Spain’s Tenancy Act. Meaning that a tenant can, at his own volition, remain in the property for the next 3 years as the law allows it him to (so long as he pays the rental).
This new law clearly draws a line between short-term lets (less than 2 months) and long term lets (over 2 months).
Query 2: Article 8.2 says the following: 2. “Las condiciones de precio, reserva, anticipos y, en su caso, cancelación se regirán según lo expresamente pactado entre ambas partes, que en todo caso, deberán ser detalladas y publicitadas con carácter previo a la contratación.”
This means you can draft a Tenancy Agreement and rule on cancellations and reserves etc however you see fit so long as both sides are in agreement and it is set in writing prior to the rental.
Now, should the landlord and tenant NOT rule on the matter, then this law will apply by default with the following points:
“Unless agreed otherwise, the maximum reservation fee is 30% of the total price.
• If cancellation of the reserve is done over ten days in advance the landlord can pocket 50% of the reservation fee in compensation.
• If the cancellation is done under 10 days then the landlord is entitled to pocket the full amount of the reservation fee.
• If it’s the landlord that cancels he may do so without penalty over ten days in advance.
• If the landlord cancels under ten days he must pay a compensation to his guest of 30% of the final agreed total price.”
Hope that clarifies.
Regards
C says:
Does anyone know of the regulations for access? I’ve rented a number of houses over the years and not one had disabled access.
Raymundo Larraín Nesbitt says:
Morning ‘C’,
Let me start by writing that I am no expert on the matter, but access for those who are disabled is ruled at a national level.
The following link provides a collection of disability laws collated by the Junta of Andalusia which are in force and apply throughout Andalusia:
http://www.juntadeandalucia.es/organismos/igualdadypoliticassociales/areas/discapacidad/accesibilidad/paginas/normativa-accesibilidad-urbanistica.html
In truth, when a developer applies for a Licence of First Occupation this is one of the controls that is carried out by the Authorities. I have personally witnessed how a LFO was delayed for over six months in Andalusia because the developer had not installed disability access ramps in the development, and until he did, the LFO would not be issued. But this only applies to buildings built since 2007 as Royal Decree 505/2007 is from that year. Buildings completed prior to 2007 need to be adapted.
More on LFOs:
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
Regards
J says:
Hello Raymundo and thank you for many interesting replies, two of which make me want to put one more question:
You have previously said
“LFOs did not exist back in the ’70s!
Yes, for old properties, such as yours, you can request from your town hall an equivalent document (“cédula de habitabilidad”).
But first you need to hire a professional, such as a technical architect (also known in Spanish as ‘aparejador’) who will draft a ‘Certificado técnico de habitabilidad’. This document basically says the property may be dwelled, it is safe and complies with all legalities. Once you have this document you can now visit your town hall’s planning department and request from them a “cédula de habitabilidad”.
The “cédula de habitabilidad” will serve as a LFO for the purposes of this law.”
and – speaking of the rules on acces for handicapped people –
“In truth, when a developer applies for a Licence of First Occupation this is one of the controls that is carried out by the Authorities. I have personally witnessed how a LFO was delayed for over six months in Andalusia because the developer had not installed disability access ramps in the development, and until he did, the LFO would not be issued. But this only applies to buildings built since 2007 as Royal Decree 505/2007 is from that year. Buildings completed prior to 2007 need to be adapted.”
How does this affect our attempt to gain a holiday renting licence for our apartment in a building from long before the year 2000? The building and the apartment are perfectly accessible in a wheelchair, f.inst. – unless the entry door by the ramp leading to the building is too narrow; I’m not sure – but the bathroom door is rather narrow and the shower is in ar cabin that obliges you to lift your feet appr. 20 cm. to get ind.
Will we need to have work done to remodel our bathroom before we can get the “Certificado técnico de habitabilidad’” and thereafter the cedula de habitation needed for the holiday rental licence or
– are we saved by the fact that our building was put up before the demands for accessibility were introduced, or
– is it enough that the building as such is accessible, even if the bathroom isn’t really handicapfriendly (yet).
Which of the legislation mentioned in your link http://www.juntadeandalucia.es/organismos/igualdadypoliticassociales/areas/discapacidad/accesibilidad/paginas/normativa-accesibilidad-urbanistica.html
is relevant to this question?
Thank you in advance for your answer.
J.
Raymundo Larraín Nesbitt says:
Morning J,
All legislation applies to you!
If you lack a Licence of First Occupation you will need to hire a technical architect who will apply for a certificado técnico de habitabilidad on your behalf before your town hall’s planning department. As part of his work he will verify your property is compliant with the current disabled access laws in place, including the use of bathrooms of course.
If you are not compliant, you will need to carry reforms to abide by the laws. Should you disregrad this you will not attain a cedula de habitabilidad and be renting out illegally subject of being fined a humongous fine (over £10,000).
So it really is up to you and your technical architect on whether you want to be ‘legal’ or not. Let me know if you need me to recommend you companies.
Regards
J says:
Hello, Raymundo
Thank you for all the great information on this site.
I am now in the position to repay your kindness to some small extent – or maybe to sow further confusion into the minds of the readers.
In a meeting yesterdauy in Nerja where some “delegate” from the andalucian “junta” participated, a participant who has reported to me gor the following impression:
1) The law only applies only to those who rent out through agents or on internet-pages where bookings can be made.
2) In Nerja -as it is supposed to be the case already in Malaga – the municipality will supply apartments and houses with sufficient documentation on the basis of a declaration from a specialist made on a specific formula that the municipality will set up
3) Old cedulas de habitabilidad for whole apartment-blocks will not be accepted, because the documentation needs to relate to the individual apartment.
Do you have any comments? I am particularly surprised by the bit about the scope of the law.. Also I thought that an LFO would be issued for the whole apartment block as well.
Kind regards
J
Jane says:
Thanks for the info. We are just outside the boundary of a small village in the mountains half an hour from Nerja so I believe we need a VATR although does seem quite difficult to define if we are rural or not. The main problem is I don’t believe we have a LFO. The house was built in 1998 and we are the second owners. How can we get a licence without it?
Raymundo Larraín Nesbitt says:
Hi Jane,
Actually it is quite easy to find out. In your Title deed it will be specified if your land is zoned as rural.
By what you write it seems your property is in rural land in which case this new law does not affect you. You would be ruled by Decree 20/2002 (rural lodgings).
You can request from your town hall a ‘cédula de habitabilidad’.
Regards
Raymundo Larraín Nesbitt says:
Morning Michael,
I do not answer queries made through Facebook, sorry.
I do not see any problem with what you suggest. When you happen to mention you have a big house inland is this rural land you are talking of? Rural land is expressly ruled out of this law as it is subject to its own law in Andalusia Decree 20/2002. Self-quoting myself:
“Excluded Properties
The following properties are excluded from being regulated by this decree:
• Rural properties, located in what is legally classified as rural land, are expressly excluded as they are subject to their own legislation: Decree 20/2002.”
I take for granted your property is in residential land, otherwise your query would not apply.
As I mention in my article, you can rent out from luxury villas to single rooms so long as you are registered before the ATR (which is free) and display in all your advertisements the ATR code.
Make sure you acquire the gadgets the law demands for every bedroom (A/C units etc).
Also make sure to declare and pay tax on your rental income in Spain.
Regards
Jo says:
Hi,
We bought our villa, on a community in 2004. They were constructed in 1996.
I assume they have had a FLO as our abogado did not say there was a problem and various properties have been bought and sold with ease – plus we got permission for our pool with no hassle.
However, I have never heard of a ‘Habitation Certificate’. The villa next door changed hands just last month and the new owners said that they had got a Habitiation Certificate – so hoping it will not be a great problem for us. I spent all day yesterday researching – but still have a few question.
1) Am I correct in thinking I need to go to the Town Hall and request one?
2) Is it advisable to use an Abogado or estate agent – or is it a simple procedure that I can do on my own.
3) Any idea how long it will take?
4) If it is a simple , but lengthy process can I register with just proof of an application.
5) At present I advertise on HomeAway and have many bookings stretching throughout the summer to the end of October. If there is a delay in me registering due to the Habitation Certificate will I have to cancel all the bookings?
Many Thanks for all your help and advice – it is much appreciated. I have learned a lot from your answers to other people.
Raymundo Larraín Nesbitt says:
Morning Jo,
In Spain ‘assuming’ things usually leads to costly mistakes. Always check your facts and do not work on assumptions.
LFO is basically the same as a ‘cédula de habitabilidad’ or habitation certificate as you call it. It is expressly mentioned in my article they are all one and the same.
1. Yes, from your town hall.
2. You can do it yourself but you will learn first hand what all the fuss on the red tape is. A lawyer is what you really need to sort it out, yes. This is not an estate agent’s job.
3. A few months on average, maybe less. Depends on the town hall really, it varies.
4. No, you may not. You need the ATR code least you want to get fined (which may or may not happen).
5. That is up to you and if you are a risk-taker. You are risking a hefty fine that much I have made clear. Under this new regulation you would be offering to rent a non-regulated property. You must make up your mind if the benefit outweighs the risk. Again I repeat that properties on offer on internet without the mandatory ATR code will be ever so easy to spot and be fined.
You are welcome.
Regards
S says:
Raymundo
Excellent article – the best analysis available on the internet.
I have read the decree, can you explain more about Single transitional provision. Transitional arrangements.
Is this a potential loop hole to carry on with pre booked and paid rentals for the coming summer season without penalty?
Raymundo Larraín Nesbitt says:
Hi ‘S’,
Thank you, you are much too kind.
You mean this?:
“Disposición transitoria única. Régimen transitorio.
1. Los artículos 7 y 8 no serán de aplicación a las viviendas ubicadas en inmuebles situados en suelo de uso residencial, contratadas o reservadas con anterioridad a la entrada en vigor del presente Decreto, en las que se ofrezca mediante precio el servicio de alojamiento en el ámbito de la Comunidad Autónoma de Andalucía, de forma habitual y con fines turísticos.
2. Se establece un plazo de un año desde la entrada en vigor del presente Decreto, para que las viviendas se adapten a la previsión contenida en el apartado d del artículo 6.”
The first part refers to my sections Holiday Rental Agreement (article 7) and Price and Reservation (article 8). They will not apply to existing (short-term) lodgings at the time this law comes into force.
As for the second part it refers to section d in article 6 that refers to the air conditioning and heater. Landlords will have one year to adapt to these requirements as from the time this law comes into force. As the law comes into force next 12th of May 2016 I had included in the article in italics that the A/C will be required as from 12th of May 2017. They cannot fine you before that date if your property lacks A/C in every bedroom & living room.
Hope that clarifies.
Regards
S says:
Thank you Raymundo
Susan says:
Hello again,
As I said previously I pay all my taxes and would be happy to register but am unable until we get our LFO. Therefore I will remove my apartment from Homeaway by 11 May. However looking at the rules, and definition of “tourism channels” it would seem to be OK to have my own website and advertise it by other means which do not offer a booking service e.g. printed press. What do you think?
Raymundo Larraín Nesbitt says:
Hi Susan,
I think it won’t make a difference. You are just circumventing the law. The lawmaker has purposely left the inclusion as obscure which has been criticised by the Consejo Consultivo Andaluz itself in its legal report (Andalusia’s think tank).
You cannot (legally) rent out properties which lack a Licence of First Occupation (the licence is there precisely to ensure the dwelling is fit for human habitation). This is not something new this Decree has introduced; it was always the case as highlighted in my LFO articles since 2005.
It won’t matter if you are paying tax on your rental income – it is still a non-regulated activity as from the time this Decree comes into force (you need the ATR code and for that you need the LFO in place).
Another matter is if they will catch you or if they will enforce their own law harshly (imposing large fines). We can only speculate at present.
Regards
Teresa says:
Dear Raymundo,
Thank you for the excellent article. In terms of process, can you clarify please how the registration system will work i.e.
1. After completing the form and submitting the documents online, is the ATR code issued automatically, within a certain period, or by 12th May 2016 at the latest?
2. Who is responsible for issuing the code, the Junta de Andalucía or the local town hall?
Muchas gracias!
Teresa
Raymundo Larraín Nesbitt says:
Morning Teresa,
Thank you for your kind words.
1. Within a certain period, yes. If they are efficient you should have it by the 12th of May 2016.
2. Always the Junta. The Junta will notify your local town hall.
You are welcome.
Regards
Barbara says:
Hello Raymundo
I rented out my town house for 3 years last December to a local family who may wish to do some holiday lets. Is it there responsibility or mine to get the licence? We have had a proper rental agreement drawn up with the option of breaking the tenancy after a calendar year and I paid my tax on the rental income in Spain in January.
Yours sincerely
Barbara
Raymundo Larraín Nesbitt says:
Morning Barbara,
Mmm tricky question.
My take is that it is ultimately your responsibility as you are the owner of the property. But it is open to debate to be honest as I can see good arguments either way.
Article 4 states that it is presumed the owner of the property is the landlord unless on registering before the ATR another person is mentioned as being responsible. So effectively the law allows your Spanish tenants to be responsible for it. But if they fail to register before the ATR the short-term tenancy business YOU will be held liable for fines as you are the registered owner.
Artículo 4. Responsabilidad ante la Administración turística y las personas usuarias.
“Se presumirá que la persona propietaria de la vivienda con fines turísticos es la explotadora de la misma y será la responsable ante la Administración y las personas usuarias de la correcta prestación del servicio, salvo que en la declaración responsable, a la que se refiere el artículo 9.1, conste otra persona o entidad como explotadora de la misma, debiendo disponer en tal caso de título jurídico habilitante.”
In any case either you or them have to comply with this new law; so you must agree who bears the brunt of the costs.
You are aware that you can forbid tenants from subletting your property, yes? You just need to add a clause in your tenancy agreement.
Regards
Barbara says:
Thank you Raymundo, I really appreciate your valuable advice and suspected this situation may fall in to a ‘grey’ area! My principal concern is that if the licence is registered in my name and they are conducting the business (which I’m more than happy for) then then they will not slip through the net making me liable for any tax on their airbnb income.
I am sure they will be happy to register the property in their name which may be the best solution or maybe we should register it in both our names?
Sincerely
Barbara
Raymundo Larraín Nesbitt says:
You are welcome.
Definitely registering at the ATR under their own name and them to be held liable.
If registration is under your name then you will be held liable for any unpaid fines etc.
Fines which go against your property at the Land Registry; fines which may be fairly large as described above.
I wouldn’t register the property in joint names as you will be held jointly liable. So if they don’t pay they will chase you.
Regards
Sandra wales says:
Hello and thank you for such an informative thread
My question is slightly off topic as my property is a Vivienda en Alojamiento rural. I have just purchased this property and as it in a rural situation I believe I do not need to register on the Andalucian Tourist Register. However I should register as VTAR where do I obtain this form? I cannot find it on the website. Also I do not have a Licence of First Occupation. Can I apply for a Cedula de Habitabilidad to replace this. Thank you
Sandra Wales
Raymundo Larraín Nesbitt says:
Afternoon Sandra,
Indeed it is off topic, but since you ask ever so nicely and politely I’ll let you off 🙂
It is compulsory you register your rural lodging (VTAR or vivienda de turismo de alojamiento rural) following Law 13/2011 of Tourism in Andalusia and Decree 20/2002 (which rules specifically on VTARs):
Disposición transitoria segunda. Adaptación de las viviendas turísticas de alojamiento rural.
1. Las viviendas turísticas de alojamiento rural, hayan comunicado o no el ejercicio de su actividad al Registro de Turismo de Andalucía antes de la entrada en vigor del presente Decreto, habrán de adaptarse al mismo en el plazo de un año desde el día siguiente de su entrada en vigor.
You must do so before the ATR. You can use exactly the same link I supply above in my article for residential tourist rentals. Because both properties are registered before Andalusia’s Tourist Registry. You can self-register (it is free; no licence to be paid unlike in other regions of Spain).
The form is online, just follow the instructions (in Spanish). If your command is not high then ask a friend or even dare to hire a lawyer (gasp!). To register you must supply the following:
1. Si el/la titular es persona física, sus datos personales. Si es persona jurídica, los datos personales de su representante.
Your personal details
2. Fotocopia del Documento Nacional de Identidad de la persona que firma la comunicación o copia de la Escritura o documento de constitución, Estatutos o acto fundacional, en los que consten las reglas que rijan su funcionamiento. En los casos en que sea exigible, se acreditará su inscripción en el correspondiente Registro Oficial y Código de Identificación Fiscal, cuando se trate de una persona jurídica.
Your national identity card (if you are British you won’t have this so your passport or NIE number will do). Title deed of the property.
3. Declaración responsable de cumplir con los requisitos mínimos de infraestructura del Anexo II y con las
prescripciones específicas de la categoría básica de las casas rurales del Anexo III.
A filled in copy of your ‘responsible declaration’ that you meet all the requirements set out bu this law on rural lodgings.
4. Recibo del impuesto de Bienes Inmuebles donde figura la referencia catastral, o plano parcelario del Catastro Rústico.
Copy of a paid IBI Receipt, cadastral reference
5. Período de apertura.
When you plan to open for business.
If you lack a Licence of First Occupation it is forbidden to rent out a property. The LFOs whole purpose is exactly that; to verify the dwelling is fit for human habitation. More on this in my detailed article from 2005:
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
Yes you can apply for what is known as a ‘cédula de habitabilidad’. You may need to hire a technical architect to attain it (besides a lawyer).
I strongly suggest you acquaint yourself with Decree 20/2002 before operating a rural rental business. Hope that helps.
Regards
Rachel Langley says:
Hi Raymundo. Thank you for all your help on this. I own a Holiday Rental Company and manage a lot of properties for the owners. Can I just clarify a couple of points:-
I have a lot of forward bookings now. Does this mean that all the owners of the properties with forward bookings have to register before May. I know some of my owners will decide not to register their property and give up renting. I do not want to have to cancel anybody´s holiday but also I don´t want to take the risk of breaking the law. I assume that if I just take these properties off advertising websites, that should be fine?
With regard to the air conditioning, I understand they have a year to put this in, and again I have some owners who will decide that it is simply not worth their while to put in air conditioning and will therefore not carry on renting. But are we ok to get the licence for now, wait until this summer is over and then deregister just before the deadline for the air conditioning comes into force?
Sorry for all the questions, but it is difficult to get anybody to clarify the rules.
Thank you
Rachel Langley
Raymundo Larraín Nesbitt says:
Hi Rachel,
I understand your predicament and I can only imagine the tough position you are in having to relay all this new info to landlords who must be (understandably) upset.
Addressing your queries, yes all landlords now have a three-month deadline to register their tourist rentals (holiday rentals, private holiday rental etc). The deadline is the 12th of May 2016. After said date the Junta de Andalucia, at its own discretion, may fine landlords that do not comply with the new law I describe above (Decree 28/2016). If you take them off advertising before the 12/05/16 it is fine, yes.
Regarding your second point you are correct again. As I mention in my article above, landlords have until the 12th of May 2017 to adapt to this requirement. All (bed)rooms and living rooms must have a fixed A/C unit (portable units are banned). Someone in this thread asked if central heating will do the trick. I am unsure as it does not require a ‘unit’ installed in every (bed)room, merely a vent or duct so the air comes in.
Ha ha, yes absolutely. You can rent out this year and then de-register before the game is up on the 12/05/17 (you have a lawyer’s devious mindset!).
In any case I am confident someone clever will be able to circumvent this (daft) A/C requirement in every room with a form of centralised heating which the Junta accepts. This will save landlords a significant amount of money as almost every property built over the last ten years has centralised heating. The ball is now in the court of those handymen who are proficient with home refurbishments. They could make a killing with this new law if they manage how to legally circumvent the (daft) A/C requirements.
You are good, no need to apologise for asking! Better safe than sorry.
You are welcome Rachel.
Regards
Steve says:
Hi Raymundo, thank you for this article.
Can you tell me more about the disability access parts of these new laws please. My villa is built on a hill and you have to climb 5 steps to reach the front door. The house is also on 2 levels with bedrooms upstairs. Does this mean we cannot rent the property? What changes do we need to make?
Thank you
Steve
Raymundo Larraín Nesbitt says:
Morning Steve,
This new law doesn’t mention at all disability access.
What the new law requires is that all properties to be rented out (short-term) have attained what is known as a Licence of First Occupation. This licence verifies, amongst many other issues, that the property has disabled access ramps on site in compliance with the national law from 2007 (Royal Decree 505/2007).
So in answer to your query, this new law does NOT mean you cannot rent out your property. However, if an inspector visits your property he may write a report mentioning you lack disabled access for which you may be fined. That is a big ‘if’. The following link supplies the full list of laws currently in force in the region of Andalusia which rule on disabled access:
http://www.juntadeandalucia.es/organismos/igualdadypoliticassociales/areas/discapacidad/accesibilidad/paginas/normativa-accesibilidad-urbanistica.html
If in doubt, you should talk to a technical architect on compliance so he can advise on what works would need to be done (if any).
Regards
peter annesley says:
Morning Raymundo,
first of all, thanks for your article and taking the time to respond to individual questions.
Just to clarify, as long as I am not advertising the property or using any intermediaries, my property does not need to be on the register?
Regards
Raymundo Larraín Nesbitt says:
Morning Peter,
You are too kind.
No, you would still need to register your property and apply for an ATR code.
The law states in its article 3:
Artículo 3. Definición.
1. Se entiende por viviendas con fines turísticos aquellas ubicadas en inmuebles situados en suelo de uso residencial, donde se vaya a ofrecer mediante precio el servicio de alojamiento en el ámbito de la Comunidad Autónoma de Andalucía, de forma habitual y con fines turísticos.
So any property, in land classified as residential, that is let as a private short-term rental is a tourist rental that must be registered.
The fact you do not use specialized websites (HomeAway, Tripping etc.) or that you do not use other intermediaries such an estate agency doesn’t mean you do not have to register your property.
The law is purposely vague on this point and I, and many other professionals more knowledgeable than myself (chiefly the Consejo Consultivo Andaluz), criticized the wording employed in this Decree 28/2016 which in fact makes it as a ‘numerus apertus’ listing or an open ended list (as opposed to a closed list) which detracts from legal security (‘seguridad juridica’).
Bottom line, yes you must register your property before the ATR or else run the risk or being fined.
Regards
Steve says:
Thank you Raymundo,
In your article you wrote
– Full compliance with planning, health and safety, security and disabled access amongst other laws; both at a national and regional level.
So if we register, and advertise the house as no disabled access due to the 5 steps is that sufficient? If not, but level of fines are we talking about should an inspector come out and have a look?
I am also interested in longer term 2+ month lets in the winter. I understand they are not effected by this new law and come under something else, Spains Tenancy Act.
Do you have an article in English so I could read up on this too please? We normally rent out the house and guests pay all until it’s bills etc, so not sure if I can still do that.
Thank you again for your valuable advice.
Steve
Raymundo Larraín Nesbitt says:
Hi Steve,
The function of a Licence of First Occupation is = “Full compliance with planning, health and safety, security and disabled access amongst other laws; both at a national and regional level.”
Decree 28/2016 does not use the wording you quote. What the decree requires is a LFO (which purpose is what you quote and is my own wording, not the law’s).
The LFO verifies that the construction fully meets the requirements laid out in the Building Licence that was issued to a developer. Self-quoting myself from my article on what a Licence of Fist Occupation is:
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
“Why do you need a LFO?
The LFO is critical for two reasons:
1. Its granting means the developer has built the dwelling complying fully with the original town hall’s Building Licence (BL) as well as complying with all Planning laws. The inspection to grant this Licence is carried out by town hall’s chartered technicians who certify the dwelling is in full compliance of Health, (disabled) Access, Security, Planning and Construction Laws and is deemed as apt for human habitation.”
A 2+ month rental is excluded from this law so long as it is with the same tenant. Yes it would fall under the remit of Spain’s Tenancy Act. No I haven’t written a specific article on it but I take note and will do so in the future. All the articles I have written on rentals to date are listed under the “related articles” section at the end of the above article. This new decree does not affect at all Spain’s Tenancy Act.
You are welcome.
Regards
Tina Emmott says:
Hola Raymundo
Thank you for your brilliant comprehsive article. I thought there was a three month grace during which people could register and had not anticipated registering before August. Does this legislation effect holidays already booked for this year?
Tina Emmott
Raymundo Larraín Nesbitt says:
Afternoon Tina,
You are much too kind.
I have come across this misunderstanding before which originates in articles written by non-lawyers and their misunderstanding on how the law works. It is comprehensible as it would be very easy to fall for this mistake if you are not a lawyer.
This new decree was published on the 11th of February 2016, and on its last section it specifically states that it will come into force three months after it has been published. Normally laws come into force on the next day they are published in the BOJA, not several months after. That is the three month grace period you are referring to. The law will come into force on the 12th of May 2016. As from the 12/05/16 the Junta, at its own discretion, may fine offenders.
Some people, in their rush to publish articles, made it seem as if the law came into force in May 2016 and THEN you had a further three months grace (till August 2016). That is just an honest mistake and they have confused many people such as yourself.
You now have three months to gather all your paperwork and register yourself before the ATR (which is free and pretty straightforward). The Junta de Andalucia will be purportedly launching public awareness campaigns to inform non-residents on this new law and its requirements. They still haven’t started any to the best of my knowledge.
Hope my reply puts this widespread misunderstanding to rest.
Regards
Rachel Langley says:
Hi Raymondo.
Sorry, me again! I followed the link to the online form and my Spanish is pretty good but I couldn´t work out which form I am supposed to be filling in! So many of my clients have asked me to do it for them. Is it all on line? Or do I have to take the paperwork to the local office?
Thank you!
Rachel
Raymundo Larraín Nesbitt says:
Hi Rachel,
You are misspelling my name!
You must follow the link I supplied, download and print the form they give you (‘Declaración Responsable’).
Fill in the form in Spanish and attach all documents required as listed in my article above.
Then hand it over physically at the ‘Delegación Territorial de Turismo de Málaga’ if you are in Málaga, if not the region where you are in Andalusia (google the exact address).
After some time they will post you the unique ATR code.
You are welcome.
Regards
Steffen Hansen says:
Dear Raymund,
On this program http://www.ondaazulmalaga.es/television/video/cosas-que-pasan/41425 which is from the 11th February, the Jefe de Servicio de Turismo de Malaga Rafael Salas Gallego says that, it is a misunderstanding, that people thinks that they shall registre within three months. He says, that it is not possible to registre before three months after the Decree has been approved. So it will not be possible to registre before the 11th May 2016
Raymundo Larraín Nesbitt says:
Hi Steffen,
Many thanks for this.
You are correct. Surprisingly he makes it clear that properties cannot register before the 11th of May 2016 (sic) in minute 09.25!
I will amend my article to reflect what he says mentioning him.
He says that properties can be registered as from the 11th of May (sic) onwards.
So this means that the law will be in force when they allow people to register which will create a rush. I can only imagine they will not fine people during May, June and July because no one could register before the 11th of May.
Regards
Rachel Langley says:
Thank you and I¨m sorry about your name.
:0)
Raymundo Larraín Nesbitt says:
No worries 😉
Anto says:
Thank you very much for sharing this extensive report. It would be so nice if you can add a couple of virtual situations with final quantities of revenues and taxes. IE two single rooms in the same appartment, rented at 45€/day each one. How much I have to pay in taxes? Fixed quantity + IVA (spanish taxes). Thanks again
Raymundo Larraín Nesbitt says:
Hi Anto,
I guess it would but that would exceed the point of my article.
Have you checked my article on Non-Resident Taxes in Spain which covers rental taxation (with examples)?
http://www.spanishpropertyinsight.com/2015/12/08/non-resident-taxes-spain/
Regards
Baard Martin Olsen says:
Hi Raymundo,
And thank you so much for your assistance with explaining the new decree. In the continuation I will explain my specific situation and also address some issues I believe will be relevant also for other owners.
My main concern is regarding the requirement for occupational license, as you also mention may be a concern of many. This is my setting:
When I bought the property, located in Zahora on the Costa de la Luz, back in year 2.000, a pre-requisite was that it was legalized and that I would get papers on the property with constructions, not only the land. I signed a letter of intent for the purchase of the property for a defined sales price with the real estate agency, stating that I would only purchase if the legalization was successful. After a couple of months with paperwork, we were in position to go ahead. The “Escritura de compraventa” and the “Escritura/Declaración de Obra Nueva” were drafted by the Barbate notary and signed on the 12th of June 2000. Both documents detailing the construction on the plot (the 2 main buildings) and the Declaración de Obra Nueva with a certified arquitects document as annex. Even though the Declaración de Obra Nueva details the constructions it does not detail the allowed capacity of people. It does however certify that the house is suitable for permanent living.
The property is registered in the “registro de propiedades, has a catastral reference and I am paying “Rustica i. bienes inmuebles” based on just over 800 m2 of land with 166 m2 of construction. I am of course also paying tax on rentals through the “Modelo 210”. Some time back I also obtained the required Energy Certificate.
As you may know, the Zahora and Caños de Meca area has been in a process of zoning for several years (PGOU de Barbate) and this process has still not been finalized. Based on the current draft, http://www.pgoubarbate.es/1.html , our property will be located within the “Suelo Urbano Residencial” which is a good thing.
This leads me to some questions;
1. Does one need to have both a “Declaración de Obra Nueva” and a “Licencia de ocupación”?
2. Or can the Declaración de Obra Nueva be considered a substitute for the Licencia de Ocupación?
3. Can Barbate or other counties in a similar situation issue “licencias de ocupación” for areas where the zoning still is not concluded? To my understanding Barbate (or other counties in a similar situation) does not sign off on any building projects (“Obras mayores” or “Obras menores”) until the zoning has been concluded, does this seem logical/probable?
I hope you can help me further with these issues.
Best regards,
Baard
Raymundo Larraín Nesbitt says:
Hi Baard,
Thank you for your kind words.
Indeed, the fact your property is re-zoned from rustic over to residential will have a huge impact on value (meaning it will soar).
Addressing your queries:
1. Does one need to have both a “Declaración de Obra Nueva” and a “Licencia de ocupación”?
Yes. They are different documents. The former states a new build has been done, the latter verifies, amonsgt many other issues I will not go into, that the property is fit for human habitation.
2. Or can the Declaración de Obra Nueva be considered a substitute for the Licencia de Ocupación?
No, it is no substitute.
3. Can Barbate or other counties in a similar situation issue “licencias de ocupación” for areas where the zoning still is not concluded? To my understanding Barbate (or other counties in a similar situation) does not sign off on any building projects (“Obras mayores” or “Obras menores”) until the zoning has been concluded, does this seem logical/probable?
You must discuss this point with your town hall’s planning department. And yes, it seems entirely logical.
Regards
Baard Martin Olsen says:
Hi again Raymundo,
and thank you so much for your answers above.
I have digged further into the issue regarding Declaración de Obra Nueva vs. Licencia de Occupación and would be most grateful if you could comment on the following;
From this reference: http://www.hg.org/article.asp?id=18087 ,
I quote the following selected section;
“….But, meanwhile, the construction is not declared in the land registry. So, there is a process to inscribe the construction in the land registry, which is called: Declaración de Obra Nueva. This process will get the construction declared in the land registry.This is a process done in front of a Spanish Notary, who will prepare the deeds of the house over the pre-existing land or plot. To make the DON, for new houses, it will be necessary to obtain the Certificate of Habitation (CH) from the new Spanish Regulations of 2007 (Ley del Suelo de 2007). BEFORE 2007, NEW HOUSES COULD BE INSCRIBED IN THE LAND REGISTRY WITHOUT THE CERRTIFICATE OF HABITATION. The result of the DON will be to obtain the deeds from the house, duly described in the proper title deeds….”
So, to my understanding it seems that all papers necessary were issued at the time of legalizing in 2.000 and in legalization perspective nothing is missing. However, the rental decree demands the CH, but could I refer to the Decl. de Obra Nueva instead based on the legalization/registry process the way it was defined back in 2.000?
Saludos,
Baard
Raymundo Larraín Nesbitt says:
Hi Baard,
A very interesting article but its title is: “How to Build on Rustic Land in Spain”.
You do realize the law above expressly rules that rustic properties are excluded from its scope as they are ruled by their own law (Decree 20/2002). Decree 28/2016 deals only with residential property, not with rustic.
The new law I analyse above requires that a property is:
1. Residential
2. Has a LFO
Your property is:
1. Rural
2. Has no LFO
A DON cannot substitute a LFO which purpose is completely different.
The purpose of a DON is basically to legalize a construction and make the necessary changes at the Land Registry so the registry reflects reality. The property is ‘born’ to the legal world.
The purpose of a LFO is what I describe above; in a nutshell it ensures the property is legal and fit for human habitation.
If you lack a LFO/CH you can always request one from your town hall so long as you meet the requirements.
Andalusia’s Tourism Registry will not allow you to register your property as yours is currently classified as a RURAL property and the purpose of this new law are RESIDENTIAL properties; much less if you lack a Licence of First Occupation which is the first requirement no less.
Even if you did manage to register, which is unlikely, as the process is done on a self-certifying basis, you may be heavily fined on having made a false statement, under your own responsibility as you lack a LFO.
The law is very clear, if you don’t meet the requirements you cannot register.
Regards
Baard Martin Olsen says:
Thanks a million Raymundo, for helping me understand the relevance and restrictions of the new decree.
With ref. to your reply to Christopher beneath I would be extremely grateful if you further along (in the weeks/months ahead) explain the main points for Decree 20/2002 including;
– In a setting similar or equal to mine, is one obliged to register in order to continue to rent
– What are the general requirements to register
– What are the general requirements to the property
Based on your last reply I take it that I will be obliged to register according to the new rental decree once the zoning has been concluded and the property is in a new setting, being situated on Suelo Urbano. At that point in time I would also need to contact the town hall to apply for a LFO/CH which should not be a problem to obtain based on the new status of the land and the DON for the property already being in place. Please confirm If I have understood this correctly.
Best regards and thanks,
Baard
Raymundo Larraín Nesbitt says:
Morning Baard,
You have understood correctly, yes. Once your property is re-zoned you may request a LFO/CH from your town hall. Once attained you can then register before the ATR.
As for Decree 20/2002 which rules on tourist rural rental lodgings I will write something short and concise next month as many readers are requesting it.
You are welcome.
Regards
Jane says:
Hi
I’ve been to the local architects office in Spain to ask them to prepare a ‘cedula de Habitabilidad’ but they say that is old now in Adulacia and I need a ‘Declaration de Asimilado a fuera de Ordenacion’. This is to get the VTAR licence. Do you know anything about this new delcaration?
Many thanks
Raymundo Larraín Nesbitt says:
Afternoon Jane,
What you write makes no sense.
A cedula de habitabilidad or Licence of First Occupation is not old. The very article that kicks off this long thread deals with a law that was passed barely a week ago which first requirement is precisely for landlords to have a Licence of First Occupation in place (or cedula de habitabilidad).
The law above deals with legal residential properties, not rural properties (much less illegal ones such as yours).
This was your initial query:
“Thanks for the info. We are just outside the boundary of a small village in the mountains half an hour from Nerja so I believe we need a VATR although does seem quite difficult to define if we are rural or not. The main problem is I don’t believe we have a LFO. The house was built in 1998 and we are the second owners. How can we get a licence without it?”
You yourself above were asking on LFOs. The problem you REALLY have, which you fail to mention in your query, but I have surmised from your new post above, is that you own an ILLEGAL rural property of the type I describe in detail in my article Buying Rural Property in Spain:
http://www.spanishpropertyinsight.com/2014/08/08/buy-rural-property-spain-2/
You are not going to attain a Licence of First Occupation or cedula de habitabilidad anytime soon as your property is illegal (i.e the first owner built on green belt land or land that could not be built upon). You need to follow a special procedure known as ‘Declaración de Asimilado a fuera de Ordenación’ which is the one your architects have mentioned that will ‘legalise’ your property. This is completely different from the initial query you asked me. I took for granted your property was legal/legally built and that for some reason you had not applied for a LFO after all this time. You failed to mention your rural property is illegal. What’s happened is that more than 6 years have elapsed and the Administration can no longer demolish your property nor instigate criminal proceedings against yourself on having built a house on non-urbanisable land.
Even if you do manage to attain a ‘Declaración de Asimilado a fuera de Ordenación’ you will NOT be granted a Licence of First Occupation so you cannot rent legally as per Decree 20/2002 which rules on rural rental accomodations.
You have an excellent article on the matter written in English here: REGULARISATION OF ILLEGAL PROPERTY BY JUNTA DE ANDALUCIA.
http://www.berdaguerabogados.com/regularisation-of-illegal-property-by-junta-de-andalucia/
Regards
Jane says:
Hi
Not good news then. So even if we get the house legal, (which the architect thought we would) we won’t be able to get the Cedula de Habitabilidad needed for the VATR?
Raymundo Larraín Nesbitt says:
Sorry to be the bearer of bad news.
I do not think you will have much trouble attaining the legalization of the property as your architect suggests. But as for attaining a cedula, no, sorry.
You must understand your property was illegally built (by the first owner). AFO properties are merely ‘tolerated’ by the Administration, you will not attain a LFO.
That said I am not an expert in rural tourist lodgings and cannot find in the law a requirement to have a LFO/cedula in place (unlike residential tourist rentals where the new law I analyse above is clear and requires a LFO from the landlord).
You should phone the Tourism Office in Malaga and query this point as it is them whom you need to register before (the ATR) to open a rural tourist lodging business in the first place. Make sure you speak Spanish or ask a Spanish-speaking friend to do the talking on your behalf:
Turismo
Avd. de la Aurora, 47. Edificio de Servicios Múltiples
29007 – Málaga
Teléfono: 951 03 82 00
Fax: 951 03 82 14
Email: dpmalaga.ctd@juntadeandalucia.es
Regards
Ulf Noberg says:
Hi again Raymundo.
You are now the light in the darkness:-)
It is stated that the owner shall inform about the rental price per night!
Does this also mean…that you MUST rent out for one night? If the tenant want that…
Or can you have a minimum nights .like 4 or 7, since the fixed cost for clean and laundry will be very high for just one nights stay!
I am sure your lawfirm in Marbella will be a success!
Raymundo Larraín Nesbitt says:
Morning Ulf,
Thank you for your kind words.
I’d be content to just break-even.
You are correct. The price is per night and all-inclusive as per art 32 of Law 13/2011 of Tourism in Andalusia. So this price must include everything, even taxes.
It is not mandatory to rent out just for one night – no one can force you to do that. It is entirely up to you how you organize yourself so the numbers stack up. However, pricing must always be per night and all-inclusive (like in hotels).
You can set out with freedom the minimum nights for your property, yes, subject to pricing it per night.
Hope that helps Ulf.
Regards
Ulf Norberg says:
It helps Raymundo!
Thanks again!
Best Regards
Ulf
Raymundo Larraín Nesbitt says:
You are welcome Ulf.
Christopher says:
Hola Raymundo,
Another great article that helps us understand the complexities of Spanish legal life, thank you.
I thought I would be subject to this new law but as your article clearly explains I have the rural land exemption, so I want to encourage you to write something of equal clarity on the requirements of the Andalusia Decreto 20/2002 as soon as possible! I have searched the internet but not found anything in English at all…
Raymundo Larraín Nesbitt says:
Afternoon Christopher,
Thank you for your kind words.
It would seem I am now obliged to write up something on Decree 20/2002 as over a dozen readers, including yourself, have requested it.
I’ll write up something short and concise on it.
Regards
Paul says:
Hi Raymundo,
really a great article – thank you so much for time investing (and also answering the many questions raised by the readers).
I have just one question: will it be also possible to rent out a single apartment on short-term basis (in an apartment block with many different owners)?
Thanks and best regards
Paul
Raymundo Larraín Nesbitt says:
Hi Paul,
Thank you for your kind words.
Yes indeed it will be possible. In my first example Mr Majere and wife rent out on a short-term basis an apartment in a community of owners.
You are welcome.
Regards
Christopher says:
I look forward to reading your Decreto 20/2002 article very much.
Please be so kind as to post a link to it in this comments thread when you do!
Thank you so much.
Christopher says:
I look forward to reading your explanation of Decreto 20/2002 very much.
Please be so kind as to post a link to it here once it is published.
Thank you very much.
Raymundo Larraín Nesbitt says:
Hi Christopher,
I will, promise. It will be April’s article. Just look here for update:
http://www.spanishpropertyinsight.com/tag/raymundo-larrain-nesbitt/
Regards
Christopher says:
Hola Raymundo,
Please let us know when you write that article on Decreto 20/2002 and post the link here.
I can’t wait to learn all about it…
Thanks in advance!
Christopher says:
Hola Raymundo,
Please let us know when you write the article on Decreto 20/2002 and post the link to it here.
Can’t wait to learn all about it!
Thanks in advance.
Raymundo Larraín Nesbitt says:
Hi Christopher,
I will publish it on the 8th of April.
The easiest way is for you to click on my name (tag) at the bottom of the article and it takes you to my list of published articles:
http://www.spanishpropertyinsight.com/tag/raymundo-larrain-nesbitt/
Regards
Raymundo Larraín Nesbitt says:
Hi Christopher
The promised article on Decree 20/2002: Holiday Rural Rentals in Andalusia
http://www.spanishpropertyinsight.com/2016/04/08/decree-202002-andalusias-holiday-rural-rental-decree/
You are welcome
Regards
Raymundo Larraín Nesbitt says:
Good afternoon Susan Macharg,
I do not reply to queries using Facebook’s app, sorry. Excellent question.
Regarding your query, you are correct, yes. As I write in my article this has to do with 2015’s new ‘Gag’ law and a law from 2003:
http://noticias.juridicas.com/base_datos/Penal/549725-lo-4-2015-de-30-mar-proteccion-de-la-seguridad-ciudadana.html
https://www.boe.es/diario_boe/txt.php?id=BOE-A-2003-13865
Decree 28/2016 rules this in art 7.2 (as you mention) and in its introduction:
“De conformidad con lo anterior, constituye una obligación de los titulares de los mismos la cumplimentación del libro-registro, así como la presentación de los partes de entrada de viajeros, según establece la Orden INT/1922/2003, de 3 de julio, sobre libros-registro y partes de entrada de viajeros en establecimientos de hostelería y otros análogos.”
Landlords will be required to supply their guests a registration form they must fill in and sign, just like in hotels. As you are probably aware hotels supply Police/Europol with guest details in case they are wanted criminals, terrorists etc.
The law from 2003 stipulates that hotels (now landlords who rent out on a short-term basis with this new decree) must supply the personal details of guests over the age of 16 years old for security reasons within the next 24 hours of every accomodation. It can be done via internet. This official web page provides the internet details where the information must be sent:
http://www.interior.gob.es/en/web/servicios-al-ciudadano/seguridad/libro-registro-de-viajeros/comunicacion-de-datos-a-las-dependencias-policial
That is why in my article’s introduction I make it clear that I am in disagreement with these new tourist rental laws as they are basically equating private holiday rentals to hotels (with all that implies from a legal and financial point of view).
I’ll amend my article to make this point clearer as I only mentioned the obligation to keep a registration form for every lodger without going into details.
Regards
Susan says:
Many thanks Raymundo, you have made the process very clear and it’s not so bad as feared. In fact once over the initial reaction it all seems fair enough. My one gripe is that all the forms, guidance etc are in Spanish. I realise that’s the national language but with so many non-residents doing rentals it would seem to make sense to have published instructions in English as there is for online tax returns.
Raymundo Larraín Nesbitt says:
You are welcome Susan.
The Junta have promised they will launch a public awareness campaign on this new law; hopefully in English so that non-residents at large may understand the legal and tax implications of this new law.
I have merely translated the new Decree adding some pointers but it makes reference to other laws, which I do not specifically address, which should also be taken on board i.e. VAT to be taxed @ 10% and filed quarterly.
Regards
Susan says:
Hello again Raymundo,
I have another question which I hope is not too stupid but arises out of further digging around and is probably academic but happens to be of interest! It seems the ATR was established by Decree 143/2014 which required various categories of accommodation to be registered including “apartamentos turisticos” so why have we been excluded until now?
Kind regards
Raymundo Larraín Nesbitt says:
Hi Susan,
No question is too stupid.
Excluded until now? You mean residential property? Law 13/2011, of Tourism in Andalusia, mentioned in my article, already established the obligation of all tourist rentals to register before the ATR (rural lodgings, residential short-term lodgings, ‘apartamentos turisticos’ etc.).
Residential property has probably been excluded till now because the approval of Decree 28/2016 was a long agonising struggle for the Junta. Many private rental associations opposed the wording of its prior draft versions as it was much harsher than the watered-down version that was finally approved on the 3rd of February 2016. Prior drafts created daft obligations (in my opinion) such as mandatory free wi-fi in every room, 19 degrees in every room all-year-round, industrial cleaning standards (!), multiple fire extinguishers etc.
So it has taken the Junta much longer than they initially anticipated to approve it. Besides many legal reports were required so it could be approved of which many levelled severe criticisms to both content and wording of the drafts. All this opposition resulted in the Junta approving the long-awaited regulation with much delay.
Regards
Simon says:
Hi Raymundo,
This process will be unworkable as owners will not be able to do this in person and electronically I have just checked the link and the link opens as privacy error and that the webpage is not safe!! As an agent we will ultimately be responsible for this and we will not have the time during the busy summer to do this without employing extra staff to do so. I did hear that we could retain the records on file and release them if required?
Its a worrying time for agents like myself only trying to help foreign owners!
Regards
Simon – Inspirations Marbella
Raymundo Larraín Nesbitt says:
Morning Simon,
Indeed, I understand and share your plight.
Let us hope, for the sake of us all, that this does not turn into an unmitigated disaster. It would be a very ugly PR fiasco, yet another one.
I think agents have enough on their minds already to be additionally concerned with this new law. What concerns me, besides the falling pound and unlikely Brexit, is that most non-resident landlords are oblivious to this new regulation. Supposedly la Junta promised public awareness campaigns specifically targeting non-residents. In so far I haven’t heard any being carried out.
It will all depend on how harshly la Junta is going to implement and fine non-compliers. And these fines may be imposed additionally on rental management agencies, as you point out, if they advertise non-registered properties.
Personally I find it very hard to believe that foreign landlords are expected to fill in a seven-page legal document in Spanish; it is simply bonkers. Most will simply not know how to do it unassisted and will require our support. Which is where we’ll step in (agents and lawyers) helping out.
I think you may be better off Simon outsourcing the bulk to someone rather than taking on the extra staff. Just my opinion.
Regards
Barbara says:
Hi Raymundo,
Unfortunately I only heard of this new decree last week, so I am now trying to catch up. Your article is very well written and I have read it in conjunction with the decree itself. In the introduction to the decree as you have stated above it refers to the Orden INT/1922/2003, however under Capítulo II, Régimen de contrato, punto 3, it seems to say that you must keep the registration form for a minimum of 1 year should they wish to inspect them, but no mention of sending the forms off. I have read through the Orden INT/1922/2003, where it confirms what you have stated, that the registration forms must be sent to the Guardia within 24 hours – but this isn’t re-iterated further in the decree – confusing. I tried the Guardia Civil link, however you have to be registered and have a user name and password to submit information. Does this mean that each property owner must register with the Guardia and if so, any pointers on how we do this? This also seems to indicate that every person renting out a property must have access to a scanner and internet. I have read your article regarding the licencia de ocupación and it seems to refer to off plan properties. I rent out an apartment which I bought in 2014, the apartment block was constructed in 2004 and the gentleman I bought my apartment from purchased it in 2005. I suspect that you will tell me that regardless of this, I still need to obtain a copy of the licencia de ocupación / LFO – is that correct? I suspect the ayuntamientos will be inundated with requests for these which will make registration by the 12/05/16 difficult. Thanks in advance Kind regards Barbara
Raymundo Larraín Nesbitt says:
Morning Barbara,
Thank you for your kind words.
Decree 28/2016 does not need to re-iterate what’s already regulated in other laws.
In my article above I go out of my way to add things from the regulation of 2003 to clarify matters; as you rightly point out, the Decree itself makes no mention to these set of obligations and merely takes them for granted. Most landlords would be unaware of them if I did not mention them. In fact, if you read other articles on this new Decree you will verify that 99.99% of them leave out mention to this obligation of registration forms from 2003.
Regarding contacting the Guardia Civil this is something you must do on your own following the instructions in the links I supply above which explain the process (in Spanish).
What you must understand is that, as I point out in the article’s introduction, this law is equating private holiday rentals to hotel lodgings creating the same set of standards and obligations. Yes, you will need a working scanner, internet etc to send off the official registration form to the Security Forces.
My article on Licence of First Occupation is now eleven years old. This was a document that was required only from off-plan properties; ten years on lenders, buyers etc are all asking for it as a means of validating the property is legal and above board and is not mired by planning issues.
As you correctly suspect, regardless, you will need to contact your local town hall and apply for a LFO or equivalent document. Otherwise you cannot register before the ATR. A property built in 2004 will have been issued a LFO, providing it was legal.
No one said registration will be a walk in the park; my position is clear towards these set of laws. The problem is just how strictly will the Junta start fining people. I hope they are lenient at first to allow enough time for everyone to set themselves up. Hopefully logic and common sense will prevail.
Hoping that helps.
Regards
Barbara says:
Hi Raymundo,
Thank you for confirming all my suspicions. I’ll get in touch with the Guardia and sort out my registration with them.
Logic and common sense don’t seem to crop up too often, but we can live in hope!
Thank you for all your help and taking the time to help us all
Kind regards
Barbara
José Martin says:
Hello Raymundo,
My wife and I own jointly three properties which we rwnt on short-term basis.
They are all within 1 km radius.
One is a detached villa, where we live, that we rent in summer, and the other two are each in different urbanisations with no link between them.
Do we fall under “apartamentos turísticos”?
In the worst case, could one of us register say two of them and the other one the other of us?
Answer very much appreciated.
José
Raymundo Larraín Nesbitt says:
Buenos días José:
Entiendo que si es un mismo titular quien detenta la titularidad de los tres inmuebles y éstos se encuentran en un radio de 1.000 metros (en un inmueble contiguo o no) tras este decreto pasaría a estar regulado por el Decreto 194/2010, de 20 de abril, de establecimientos de apartamentos turísticos.
Art. 1.2. d
«d) Los conjuntos formados por tres o más viviendas de una misma persona titular o explotadora, que estén ubicadas en un mismo inmueble o grupo de inmuebles contiguos o no, siéndoles de aplicación la normativa sobre los establecimientos de apartamentos turísticos, regulados en el Decreto 194/2010, de 20 de abril, de establecimientos de apartamentos turísticos.»
Disposición final primera.
«3. Pertenecen al grupo conjuntos aquellos establecimientos integrados por tres o más unidades de alojamiento ubicadas en un mismo inmueble o grupo de inmuebles, contiguos o no, ocupando sólo una parte de los mismos, en los que se presta el servicio de alojamiento turístico bajo unidad de explotación.
A efectos de lo establecido en el párrafo anterior, se entiende como grupo de inmuebles no contiguos aquel constituido por dos o más inmuebles situados cada uno de ellos a una distancia máxima de mil metros de la conserjería u oficina de la entidad explotadora.»
Por lo que entiendo es la titularidad o unidad de explotación el factor determinante y no quien se registre ante el Registro de Turismo de Andalucía. Así si tu mujer se registra como explotadora de la villa y tú de los dos apartamentos entiendo que aún así estarías dentro de la normativa de apartamentos turísticos puesto que la titularidad y unidad de explotación de los tres es la misma y los inmuebles se hallan en un radio de mil metros.
En cualquier caso deberías solicitar una aclaración por parte de la Delegación Territorial de Turismo al respecto.
De nada.
Saludos
José Martin says:
Many thanks Raymundo
Ulf Norberg says:
Dear Raymundo,
Can it be an option, to rent out ONLY LONG TERM…two months or more, instead of the short term rental, and than,NOT need of the tourist rental registration, for short term, at all?
Or do the landlords still need to register, even if they do NOT rent out short term?
I have not found this law for long terms rent, in English…so hard to tell for me!
Best Regards¨
Ulf
Raymundo Larraín Nesbitt says:
Morning Ulf,
Yes, sure. If you rent out for more than 2 months to the same tenant you are excluded from Decree 28/2016 above and fall under Spain’s Tenancy Act (long term lets).
You are aware that a tenant can stay in your property for the next 3 years at his own will under Spain’s Tenancy Act for long term rentals other than summer rentals, yes? So long as they pay the monthly rental of course.
There is no obligation to register before the ATR if you only deal with long term lets ( 2 + months) that fall under Spain’s Tenancy Act.
Regards
Ulf Norberg says:
Morning Raymundo,
Yes I am aware of that, since YOU have informed me about it earlier!
So it looks like, the split between “short term rent” and the “long term rent”…will be two months than!
I have heard stories…that 11 months is seccure…but not any longer periods of timer, since the tenant can stay as long as they want! But this limit is now 2 months? Or perhaps, has always been two months?
So…my plan is: To have a rental fee per month, which is high enough, so IF somebody would like to stay for three years, I would not mind:-) Easier said than done, perhaps!
Thanks a lot Raymundo…The landlords light in the dark!
I am sure that Your law firm will be a brilliant business:-)
Raymundo Larraín Nesbitt says:
Hi Ulf,
I’m afraid that it is more complicated than just that.
Spain’s Tenancy Act rules on two type or rentals: permanent ones (for use as a permanent abode) and those which purpose is different from a permanent abode i.e. summer rentals.
Summer rentals are excluded from the compulsory three-year subrrogation rule I mention above. However long term rentals (for use as a permanent abode) fall under this rule.
The practical problem is that some people, to waive the three-year compulsory stay, word contracts as false non-permanent dwellings and legal problems arise which are normally settled by a judge.
In any case, the eleven-month contracts you mention are not safe; they are a myth as much as Nessie is. What makes the difference is if the tenant requires the house as a permanent abode or not regarding Spain’s Tenancy Act; and that is what must be proved and worded clearly in a rental agreement.
The decree above rules on lettings that are under two months (with the same tenant) and obviously not for a permanent abode as they are intrinsically short-term lets. 2 + month contracts (with the same tenant) will be ruled by Spain’s Tenancy Act and following what I have written the three-year rule may or may not operate (depending on whether the rental agreement is construed as a permanent abode or not)
I am unsure on whether I have clarified it or made it even worse for you.
Regards
Ulf Norberg says:
Dear Raymundo,
I got the picture!
Thanks again!
BR
Ulf
Daniele says:
Dear Raymundo,
you are really becoming a ray of hope for many.
Now here is my case.
My house is over 30 years old and was in a rural zone.
Now since a couple of years the zone has been classified as “urbanizable”.
(We are now paying IBI on the land but they have not charged yet for the house.)
The urbanization is not completed yet (they stopped because of the crises and will continue in the near future)
We have electricity from Endesa. The water comes from a well and the sewage is biological tanks.
What are we now? Still rural or urbanized?
What permit do we have to ask for in order to rent?
Again, thank you soooo much for all your advises.
Kind regards
Daniele
Raymundo Larraín Nesbitt says:
Hi Daniele,
Thank you for your kind words.
Without more details I hesitate to reply on your land classification, sorry; it would be very irresponsible to venture an answer.
If the development is not yet complete then I guess you still have not attained a Licence of First Occupation. Without a LFO you cannot rent the property following the law above in Andalusia.
The development must be finished first to attain a LFO from the town hall’s planning department.
Let me just add that this was always the case, as per my article on LFO, this new law has not added anything new on that respect.
Regards
Daniele says:
Thank you 🙂
rojoybago says:
Thanks a lot Raymundo; (for all your articles) – just listed a flat of mine on Airbnb so will get the ball rolling and get my special number – let’s see how long it takes….. Just wondering when the mass hysteria breaks out in the media?? it really will cause a lot of discomfort especially for those who don’t declare their incomes, don’t have the right 3rd party insurances, disobey statutes of communities and of course abuse tenants who book in good faith.
Frankly, whilst a staunch neo capitalist, I think these type of controls in Spain are way overdue and will help Spain to become the Germany of Southern Europe over time (just my opinion),
Rojoybago
Raymundo Larraín Nesbitt says:
Hi Rajoybago,
Thank you for your kind words.
Certainly it will help to bring into the open thousands of undeclared lets which is always positive.
However there are controversial aspects of this law that I would have softened considerably given the fact that private individuals are not hotels after all and lack their financial clout. The duty of landlords to notify the Police or Guardia Civil on the ID of every new guest booking an accommodation seems a bit over the top. The fact you need an A/C unit in every bedroom (including living room) seems a tad overstretched too in my humble opinion. The quarterly filing of VAT is going to prove a burden for many landlords, invoices for every guest even if for one night etc. At least they removed free wi-fi, 19 degrees in every room requisite, spotless cleaning (which is an uncertain legal term adding legal insecurity) etc.
Too much red tape is bad for business me thinks. Let alone the huge fines. Will they really enforce them harshly? God knows.
I think we must attract foreign investment, not scare it away or make it overcomplicated for them for no good reason. But that’s just my opinion. Many people do not agree with my article’s introduction. We are all entitled to voice our opinions.
Regards
Catriona says:
Hi Raymundo, thank you for a very informative article & discussion!
I act as a rental agent for several properties, all within the same development of 2 blocks. One block has an occupation license and one does not.
I have heard from one of the owners, that they have been told by their lawyer, that all bookings / contracts made before May 2016 will be ok to go ahead, even if the owner does not register the property. Can you confirm if this is true? I have many bookings up until the end of 2016, and even some for 2017. So if they are bookings already secured, even if the owner does not / can not register, will these bookings be considered ‘legal’.
Many thanks in advance, Catriona
Raymundo Larraín Nesbitt says:
Good afternoon Catriona,
Thank you for your kind words, much appreciated.
Let me start my reply by making it clear that I refuse to comment on fellow lawyer’s opinions, much less to criticize them publicly.
That said, properties located in a building that lacks a Licence of First Occupation cannot be rented out legally. This is nothing new and most certainly this Decree 28/20016 hasn’t changed this as it was always the case. I already made this clear in my eleven-year-old article on Licences of First Occupation (LFO):
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
“What are the Associated Problems of Completing on a Property without a LFO?
Although it is legal to complete without a LFO, it entails numerous practical and legal drawbacks which ought to be carefully pondered. To name but a few:
1. ..
5. You will not be able to let the property, at least legally.”
So if you are asking me on properties that are located in a block that lacks a LFO, it is unlawful to rent them out, period. What has changed is that now, with this new law in force (as from the 12th of May 2.016), if they catch you red-handed renting out on a short-term let without a LFO you are going to be slapped a huge fine regardless on whether the property was registered or not.
If you register before the ATR under a false pretence that you had a LFO in place when you in fact did not the fine will be humongous. When you register before the ATR it is under your OWN responsibility that what you are stating in the form is the truth; hence the name of the document: ‘Declaracion Responsable” (responsible declaration).
All that said, this new law expressly says the following:
“Disposición transitoria única. Régimen transitorio.
1. Los artículos 7 y 8 no serán de aplicación a las viviendas ubicadas en inmuebles situados en suelo de uso residencial, contratadas o reservadas con anterioridad a la entrada en vigor del presente Decreto, en las que se ofrezca mediante precio el servicio de alojamiento en el ámbito de la Comunidad Autónoma de Andalucía, de forma habitual y con fines turísticos.
2. Se establece un plazo de un año desde la entrada en vigor del presente Decreto, para que las viviendas se adapten a la previsión contenida en el apartado d del artículo 6.”
Losely translated as: all bookings made before this law comes into force (before the 12th of May 2.016) articles 7 and 8 will not apply to them.
Articles 7 and 8 correspond to my article’s sections headed: “Holiday Rental Agreement” and “Price and Reservation.”
So any reservations made prior to the 12/05/16 can waive articles 7 and 8. The law doesn’t say you can waive the remainder of articles, which includes the obligation to register the properties subject of short-term rental. Moreover article 11 of this law states that if when this law comes into force you are letting without being registered before the ATR the rental activity may be considered as clandestine and subject of being fined as it is a serious offence as I also happen to mention at the end of my article.
So my personal understanding of this law is that ALL residential properties that meet the requirements of this law need to be registered before the ATR as from the 12th of May 2.016 onwards. Those landlords with bookings already in place can waive – only for the time being – compliance with articles 7 and 8 of this new Decree 28/2.016.
As for bookings going beyond 2.016 I personally find it a tad risky to understand you do not need to meet articles 7 and 8. It could be defended but I don’t find it risk-free as it could be construed an abuse of law. I could, for example, claim I have bookings with clients till 2.021 before this law was approved. What stops me from doing so? Common sense and the abuse of law.
Following what you write it would seem there is a blanket exemption for all landlords who already have bookings and reservations for 2.016 and beyond as they do not need to comply with the terms set out by this new law. I do not see it this way for the reasons I explain above. But again, I stress this is just my personal opinion.
I hope that helps. You are welcome.
Regards
Sandra wales says:
Hello again. I am having trouble working out which is the correct form to complete to register Vivienda rural in the RTA.
Declaracion RESPONSABLE PARA EL ACCESO O EJERCICIO DE LA ACTIVIDAD
Or
Declaración responsable para la clasificación de proyecto de establecimiento de alojamiento turístico.
Can you help
Can I do these online
Raymundo Larraín Nesbitt says:
Hi Sandra,
The Junta de Andalucia’s website is down so I cannot help out. In any case, as stated in my article above, you CANNOT register yet. The registry is inoperative as I explain in my article. You may register as from the 12th of May 2.016 onwards.
No, you cannot complete the procedure online unless you have an electronic signature enabled; red tape et al.
Once the registry is enabled, you must go online and download the file called ‘Declaracion Responsable’ you then fill in this form and hand it physically at one of the ‘Delegaciones Territoriales’ (look for the one called ‘Turismo’ of the province where your property is located in):
http://www.juntadeandalucia.es/organismos/educacion/consejeria/delegaciones.html
You will need to gather the documents I list in my article above. The Junta may send to your property an inspector two to four weeks after you have handed in the form to inspect the premises physically and see you comply fully with the law’s requirements besides examining the paperwork that I list above i.e. Licence of First Occupation.
Hope that helps.
Regards
Marcin Boryczka says:
Hello Raymundo
Understand that we need to collect ID details of our guests and pass them over to the police department within 24hr from check in.
Is there an online form which can be filled in and upload ?
Also as all guests must sign rental agreement on arrival, can it be used as a form for data collection as well?
Raymundo Larraín Nesbitt says:
Hi Marcin,
Yes, unfortunately it is a requirement of this new law in line with what hotels already do.
I indicate in my article above a web address where you can supply the info online:
http://www.interior.gob.es/en/web/servicios-al-ciudadano/seguridad/libro-registro-de-viajeros/comunicacion-de-datos-a-las-dependencias-policial
Scroll down to the bottom to report online to the Police or Guardia Civil.
Data collection by whom? The Police?
Regards
Neil says:
Dear Raymundo,
Many thanks for this very helpful article.
Does this new law mean that if you are short-term letting the property by word of mouth or private website, rather than via an agency or website such as HomeAway etc you do not need to get an ATR? Is it only if you use an intermediary to let it?
We are happy to pay taxes but do not want to instal air conditioning.
Many thanks,
Neil
Raymundo Larraín Nesbitt says:
Morning Neil,
Thank you for your kind words.
By private website you mean one you make yourself and advertise your property for tourist rental?
Article 3 defines the tourist rental properties that are ruled by this Decree:
“Se entiende por viviendas con fines turísticos aquellas ubicadas en inmuebles situados en suelo de uso residencial, donde se vaya a ofrecer mediante precio el servicio de alojamiento en el ámbito de la Comunidad Autónoma de Andalucía, de forma habitual y con fines turísticos.”
Your property falls under this definition above. If you do a short-term rental on a property located in Andalusia your property is considered to be a tourist rental or private holiday rental in which case you must comply with this law. If you use an intermediary it is simply presumed. The key factor is not using intermediaries (HomeAway etc), it is the fact you charge money in exchange of the rental; whether done privately or publicly, regardless.
So in answer to your question, your property (offered by word of mouth or though private website) would need to comply with this Decree and you should declare your rental income and pay taxes in Spain on it. You need to apply for an ATR code.
Only if you offered your property free of charge (a nominal fee does not count) to friends or family would you not be ruled by it. If there is an exchange of money you are ruled by this new law and must comply with all its terms.
Hope that clarifies. You are welcome.
Regards
Les says:
Good morning Raymundo,
Thank you for such an informative and user friendly explanation of this process.
The community in which we have purchased our property (some 10 years old) is currently working with the local office towards the issue of the LFO but this is unlikely to be concluded this year.
I have been informed that the properties have been issued an FLO under Administrative Silence. Do you consider this will be acceptable for the new registration system?
Thank you
Les
Raymundo Larraín Nesbitt says:
Afternoon Les,
Thank you for your kind words.
A LFO attained by ASR (Administrative Silence Rule) is just as valid as a standard LFO under our laws. You can read this in more detail in my eleven-year-old article Licence of First Occupation:
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
Having said that, you need it in writing from your town hall so the inspector accepts it as prove.
Hope that helps.
Regards
Mandy says:
Hi Raymundo
Thanks for the highly informative article. I have a website where private owners can advertise their rental properties. Of course if the owners supply me with their ATR number I will add it to their advertisement but if they do not obtain one can I be fined, or should I remove their advertisement? I have no involvement at all with the actual arrangements between the holidaymaker and the owner, I am only advertising the property for the owner. My company is based in Andalusia region
Raymundo Larraín Nesbitt says:
Hi Mandy,
I’m glad you liked it.
Yes it is my understanding you can be fined, specially if you are located in Andalusia.
As from May 2.016 all tourist short-term rentals must sport an ATR code, following article 9.4 of this new Decree, in all advertisements.
The Junta will be trawling through websites and will eventually spot yours. You, as the website owner, will be breaking the law and liable to be fined as you are in fact abetting them.
My advise to you is that all short-term residential lets advertised through your website must have the ATR code if you wish to avoid sizeable fines.
If the Junta follows the trend of other autonomous regions of Spain, which already have similar laws in place, the bulk of the fines will be focused on targeting unregistered properties rather than fining landlords for non-compliance or defective compliance on the minutiae. The implications of this are evident on who really stands to benefit from this new holiday rental laws as I stress in the article’s introduction; hint: not consumers.
Hope that helps Mandy. You are welcome.
Regards
Mandy says:
Hi Raymundo
Can you advise me, does the full identification of each guest, ie passport details, have to appear in both the Holiday Rental Agreement and the Registration Form
or is it just the number of guests in the Holiday rental agreement and the passport details appear only in the registration form?
Raymundo Larraín Nesbitt says:
Hi Mandy,
The full passport details must be in both the Holiday Rental Agreement (this document is for your own records and must be stored for up to one year) and Registration Form (this is for the Police or Guardia Civil and must be stored for up to three years).
You are welcome.
Regards
Pablo says:
Hi Raymundo,
Excellent article and responses too!
Could you clarify the position with regard to vat on rental income. Will owners now need to register for vat and charge vat on the holiday rental price quoted for their properties? I had heard that if owners rent through an agency vat becomes due but that if they rent out privately (just using an agency to manage the property) there is no vat implication. Your understanding of any potential vat implications for owners would be appreciated.
Pablo says:
Raymundo, with reference to my question above I have just read that ‘private renting’ is exempt from VAT both for long term rentals and holiday lets. As the income is from ‘bienes inmuebles’ it is not considered ‘a business’ and does not therefore carry VAT. Is this correct? Thanks, Pablo.
Raymundo Larraín Nesbitt says:
Morning Pablo,
Thank you for your kind words.
This is an excellent question and I had been mulling the idea to add a Taxation section to my article to clarify this point; but finally opted not to as the article explains the Decree and this new law makes no mention to taxation. So decided not to overextend and complicate the article further.
What you write is correct but with nuances. Tourist holiday rentals are in principle exempt from invoicing with VAT.
However, and this is when the grey areas make their entry, if a landlord carries out any activity that can be regarded as a hotel establishment they will have to file VAT tax (on a quarterly basis).
Examples of additional services offered by a landlord: movie rental, daily cleaning laundry service, restaurant or food service (i.e. bed & breakfast), minibar, guided tours etc.
The only way a landlord is exempt from invoicing with VAT is if they just offer a bed and cleaning service on entry and exit; any additional service offered, such as the ones listed above, and the landlord will be regarded as carrying out a commercial activity akin to a hotel and will be forced to invoice VAT with all the extra admin hassle this has. Hiring a lawyer will be a must to file in time and correctly VAT every quarter.
I hope that clarifies.
Regards
PS. Why would English-speaking people choose Spanish names to make their queries in? Just curious.
Pablo says:
Thanks for clarifying the VAT question Raymundo, I have trawled the internet and there is virtually nothing mentioned.
PS. I used to live in Spain for many years and so a lot of my friends started calling me ‘Pablo’. My name is really Paul.
Raymundo Larraín Nesbitt says:
You are welcome Paul.
I know, there is very little information on taxation regarding these type of properties. I am going to have to add that taxation section to my article after all.
Regards
John says:
Thank you for your excellent article Raymundo. You are providing a much-needed lifeline for a great number of people who are having to deal with a very complicated process, and you are to be congratulated for making this information so freely available, and giving so much of your time to answering questions.
My partner and I purchased a town house (built in 1978) in Salobreña last year and are currently going through the process of registration in order to continue with providing B&B services through the Airbnb Community. There are two points which the Ayuntamiento have said we need to address.
Firstly, we are advised that we have to make provision for disabled users, such as the provision of a bathroom suitable for use by a disabled person and with access to it. However, we live in el Casco Antiguo where access is so steep and the streets are very narrow and we doubt whether any person who is disabled would choose to stay in this particular location.
Secondly, we are told that to obtain a Licence of First Occupation, we will require an inspection and Certificate by a suitable qualified Tecnico, and that we will be required to pay a fee to the Ayuntamiento of 1% calculated on the valuation of the property which, in our case will amount to considerably in excess of 2.000 €! Maybe we are more fortunate than those who own a holiday villa worth in excess of 1m € or more! Is this really a justifiable charge for providing such a simple document, where we will already have paid a qualified Tecnico to provide a certificate confirming the property meets the required conditions? This is something which your other readers may find interesting.
We are continually being told (including by our solicitor) that the application forms for registration with the Junta de Andalusia are not yet published, yet we have come across a form which appears to be the correct one to use in this instance. It has the reference 002057/4/A05D printed on the left hand edge of each page, but also appears to have reference CTC-201609288 – are you aware of this?
Best regards
John
Raymundo Larraín Nesbitt says:
Good afternoon John,
I am grateful for your kind words but there are many people who are doing an excellent job giving their time freely explaining this new Decree to foreigners and expats in general; not just myself.
If you are going to open a B&B your taxation will be with VAT, following my reply to the gentleman who made a query on this just before you.
The Licence of First Occupation (LFO) and the requirements for disabled access are not two separate points; they are one and the same. As I happen to explain on my article above when I ramble on LFOs I write:
“A Licence of First Occupation is useful because… It ensures the property is above board complying with all planning, health & safety and disabled access laws both at a national and regional level. It is also very important as it is required by utility companies to supply the property with water, electricity, gas and telephone connection.”
One of the requirements to attain a LFO is to comply with disabled access laws both at a national and regional level. If you fail to comply you will not attain a LFO and therefore will be unable to comply with Decree 28/2016 and face the prospect of humongous fines if caught letting out illegally (that is unregistered).
The 1% you are being quoted perhaps is the cadastral value of the property; which as I am sure you are aware is a figure that is normally well below the true market value (on average by 50%). So for example a property that was bought for 200k before a Notary Public in a Title deed will have a cadastral value of 100k. The 1% levied would amount to €1,000, not €2,000.
Town halls finance themselves through local taxes and licences; they are legally entitled to charge money for these legalities. Are you 100% certain they are asking for 1% of the real market price of your property? Ask your lawyer.
Regarding your lawyers comments, he is spot on. The Junta have not yet made available the ‘Declaracion Responsable’ form in their website. Which is why I stress repeatedly throughout my article that you CANNOT register before May 2016 because Andalusia’s Tourism Registry is not yet operative.
As for your mention on “CTC-201609288” I believe that reference comes from a webpage specialised in holiday rentals which I quote in my article above because I found their article translating the form into English most helpful:
http://www.spain-holiday.com/rentalbuzz/registration-form-in-english-for-new-holiday-home-rental-law-in-andalusia
The helpful people working at “Spain-holiday.com” have gone out of their way translating a Spanish seven-page form for the benefit of all who want to register before the ATR.
As for the concrete reference I believe this is just an honest mistake. When you log into the Junta’s website they request your NIE (Non-Resident Identification Number) or DNI number (Spanish personal ID card). The website then automatically logs you in the system and when you download a form to complete it automatically assigns you a random number i.e. “CTC-201609288”. This is because it is a seven-page document which you can save and return to at any point in time on logging back into the system to complete it. It is actually very helpful and clever. But the name of the form is not generic and is most certainly not called “CTC-201609288”. If I now fill in a new form it will assign me a different number i.e. “CTC-20188888”. As I write it is just an honest mistake that I believe has been misunderstood as being the actual name of the form itself; it was just an example for translation purposes, that’s all.
But If I am wrong I am sure the helpful girls at “Spain-holiday.com” will stand me corrected, gulp!
I trust I have answered all your queries John.
Regards
John says:
Thank you Raymundo. We are pleased to note the the fee of 1% is based on the cadastral value rather than current market value! We intend to comply fully so hopefully there will not be a huge difficulty with any possible future inspections.
So far as the Application Form is concerned, we have been provided with a pdf copy of what is deemed to be the alleged form – is there a way I can send it to you?
Regards
John
Raymundo Larraín Nesbitt says:
I am glad you are pleased John.
A LFO is a key document that thousands of expats would pay dearly for in order to legalise their properties. This document will be requested by a buyer when you sell the property on or even by the lender that finances him; if you do not have a LFO then you are actually reducing your pool of potential buyers not to mention that buyers may force a steep discount from you.
Bottom line, it is worth every penny. You may want to read my eleven-year-old article on why a Licence of First Occupation is so important:
http://www.spanishpropertyinsight.com/legal/licence-of-first-occupation-explained/
I don’t really see the point in you sending me the application form. I presume it is exactly the same one I am speaking of (the seven page document). As your lawyer tells you, and I also happen to point out in my article above, the form is not yet available and the Andalusian Tourist Registry will not be operative until May 2016. So there is little point in filling it now in my humble opinion.
You are welcome.
Regards
Mandy says:
Hi again Raymundo
does the full passport details of each lodger have to appear in the Holiday Rental Agreement or do they only appear in the registration form?
thanks
Mandy
Raymundo Larraín Nesbitt says:
Hi Mandy,
On both. You are welcome.
Regards
Chris Thomas says:
Hello Raymundo
A fantastic article for which many thanks. I have read, re-read, and done a search on the word “few” but cannot find an answer to my question, so would appreciate your comments.
Is there an exclusion within this new legislation for properties which are only rented out for a “few weeks” each year?
We are based in the Costa Almeria area. A major newspaper published weekly for the English ex-patriot community here ran an article on the new legislation (in general terms, not like yours!) but one thing they did say was the new legislation would not apply to homes let for just a few weeks a year – pointing out there was no definition of “few”! Is there such an exclusion? And if yes, any thoughts on the word “few”
Raymundo Larraín Nesbitt says:
Hi Chris,
Thanks for your kind words.
Well, that’s you and me both then! Because I am clueless on what the “few” means.
My understanding is that if you rent out on a regular basis you fall under the remit of this new law. You can rent out just one night, one week or one month; there is no limitation except for the two-month rule I mention.
Now you are going to ask me what I mean by “on a regular basis”. That’s a grey area of the law itself:
Article’s 3 definition on private holiday rentals:
“Artículo 3. Definición.
1. Se entiende por viviendas con fines turísticos aquellas ubicadas en inmuebles situados en suelo de uso residencial, donde se vaya a ofrecer mediante precio el servicio de alojamiento en el ámbito de la Comunidad Autónoma de Andalucía, de forma habitual y con fines turísticos.”
If you advertise through third parties (i.e. Airbnb, Tripadvisor etc) it is taken for granted you are letting it out on a short-term basis.
If you are going to rent it out short-term regularly in exchange of money you should register before the ATR to avoid fines. Just my opinion.
The only landlords that do not need to register before the ATR are the ones I mention which are expressly excluded (rural rentals, apartamentos turisticos, long term tenancies > 2 months)
Regards
Michael says:
Hi Raymundo,
Many thanks for all your posts. This is very useful information. I have 3 quick questions:
1) My property was bought in 1986 and we obtained permission and built and extension. What would have been the name of the document equivalent to an LFO then so I can ask my law firm? If I can find one I follow your steps and get an architect?
2) I hear Isle of Man is coming off the black list and does not have to pay the 3% yearly tax. When is this happening?
3) When the Isle of Man comes off the black list does this mean if the property is owned by an Isle of Man company then expenses can be deducted and tax only paid on profits rather than the gross income?
4) If Isle of Man is still taxable on gross income is there a better structure you can suggest to flip it into so expenses can be deducted?
Many thanks
Michael
Raymundo Larraín Nesbitt says:
Morning Michael,
1. LFOs did not exist back in the 80s. Your lawyers will have to request an equivalent document from your town hall. I am sure they do not need my support to help them out.
2. Correct. As from 1st of January 2017 they will be exchanging fiscal information on taxpayers. This is known as the Common Reporting Standard (or CRS) spurred by the OECD. You can read this pilot initiative in detail in a fact sheet released by the UK Gov:
https://www.gov.uk/government/publications/informal-consultation-guidance-notes-for-the-automatic-exchange-of-financial-account-information
3. This is not correct. You can ALREADY exceptionally deduct the 3% annual special tax (known as GEBI) from your rental (if you are letting it out) reducing your tax bill. I already cared to explain this in my article Non-Resident Taxes in Spain (under section five):
http://www.spanishpropertyinsight.com/2015/12/08/non-resident-taxes-spain/
Once the Isle of Man is struck off from the Spanish tax haven’s list, Spanish Tax authorities will request from you, as ultimate beneficiary of this company, to supply a tax certificate. If you are tax resident in the EU or EEA then you can offset certain expenses against your Spanish rental to mitigate your overall tax bill. In my article Spain’s Holiday Rental Laws (under the heading “II. Changes in Taxation Brought About by European Legislation”) I give a full comprehensive list of available landlord rental allowances that may be offset:
http://www.spanishpropertyinsight.com/2015/03/06/explaining-the-latest-changes-to-spains-rental-laws/
4. You wrote you only had three questions, not four. Sorry, but I do not comment on such sensitive matters over internet.
Hope that helps Michael. You are welcome.
Regards
Michael says:
Good Morning Raymundo
Many thanks for your reply. Its was very helpful. Would it be possible for me to hire you as my lawyer in Spain or do you only post replies on this website?
Regards,
Michael
Raymundo Larraín Nesbitt says:
You are welcome Michael. And thank you for your kind words.
I’ll be starting my own practice in Marbella within the next months; you can hire me then if you are still interested.
Regarding property Spanish ownership through corporate structures you may want to read my 2014 article on the matter:
http://www.spanishpropertyinsight.com/legal/buying-owning-spanish-property-companies-pros-cons/
Regards
Michael says:
Great thank you. Please email me when you have opened your practice. Have a nice day. Thanks
Raymundo Larraín Nesbitt says:
Will do Michael, thank you.
Mike Porter says:
Dear Raymundo,
I stumbled across your writings whilst researching the possibilities of buying flat to retire to in Marbella and possibly renting it out for a peroration of the first few years. we also intend (intended?) to move our business to Spain
Let me say that you have restored my faith in lawyers and that I join Michael in wishing to appoint you as our representative if (after recovering from the shock of your expose of the red tape involved) we still go ahead and put more than £300,000 into the Spanish economy.
Britain’s loss will be Marbella’s gain.
Regards
Mike
Raymundo Larraín Nesbitt says:
Hi Mike,
Thank you for your kind words.
Regards
Sue Thorpe says:
Hi Raymundo,
If an owner has their property split into 2 apartments but this does not show on the deeds can they still be rented out separate or only what is on the deeds?
Raymundo Larraín Nesbitt says:
Hi Sue,
Only what’s at the Land Registry.
You update the Land Registry details with a new deed that reflects the new works done.
Regards
Barbara says:
Hello again,
Sorry to plague you with 2 emails, however, I use a holiday internet site to advertise and they take payments and then pay me less their commission, so when I complete the form, I assume that their name should go under Título para la Explotación?However I also deal with people direct (repeat customers who no longer want to use the holiday website) so I should also be included under the same heading? I declare all the bookings whether through the site or direct, on my annual tax return. There doesn’t seem to be any provision for 2 different sets of invoice issuer. Any ideas on how to deal with this? Thanks in advance once again.
Kind regards,
Barbara
Raymundo Larraín Nesbitt says:
Hi again Barbara,
To the best of my knowledge, and following the Juntas own words, you must make a choice between one or the other. Or it is your management company or yourself, but not both. You must choose who is the Titular de la Actividad who will be held personally liable for any infringement. If you appoint them, you cannot be involved in the lodging procedure.
My advice is that you contact directly the Delegacion de Turismo where your property is located and query them how to go about this but I suspect they will give you exactly my answer.
http://www.juntadeandalucia.es/organismos/educacion/consejeria/delegaciones.html
Regards
Barbara says:
Thanks once again. I had a feeling that this may be the case, however I will get in touch with them to double check.
You have answered all my queries – now I need to hot foot it and get it all organised.
I am recommending your article to anyone I know who is involved with renting as it is the best that I have read so far.
Good luck with your practice in Marbella.
Kind regards
Barbara
Raymundo Larraín Nesbitt says:
Thank you for your kind words Barbara. Hope it all works out for you in the end.
Best wishes
Kevin says:
Hi Raymundo
I live in the UK and run a holiday a holiday management business and am a self employed sole trader.
I own a villa in Andalusia which is in an SL company, which I have been letting for holiday rentals and have been paying tax in the UK on the rentals received.
I do not know if I can continue to do so, when the new law comes into force in May, because of the villa being in a Spanish company name.
I would appreciate any thoughts you might have on this.
Thank you
Kevin
Raymundo Larraín Nesbitt says:
Morning Kevin,
Let me start by pointing out that you should have been paying tax to the Spanish Tax Authorities, not to the HRMC. As a general rule on renting a property located in Spanish territory you pay taxes on rental in Spain, not in the UK. You owe Spanish Authorities taxes going back four years (statutory limitation). Just so you are aware. More on this in my article Non-Resident Taxes in Spain:
http://www.spanishpropertyinsight.com/2015/12/08/non-resident-taxes-spain/
I do not understand your problem. Almost every property over a certain value is under a holding structure for multiple reasons i.e. tax mitigation. More on this in my article Buying and Owning Spanish Property under Corporate Structures: Pros and Cons:
http://www.spanishpropertyinsight.com/legal/buying-owning-spanish-property-companies-pros-cons/http://www.spanishpropertyinsight.com/legal/buying-owning-spanish-property-companies-pros-cons/
I do not see it as a problem registering before the ATR. You may continue to rent it out if you wish come May, providing it is registered to avoid humongous fines.
Regards
Hans says:
Hi Raymundo,
Thank you for your articles about the Spanish law.
We own a house that is situated on a finca rustica (6.500 square meters), fuera de ordenacion. Allthough the major part of the house is over a hundred years old, the house appears not to be registered.
Do you know a reliable specialist that can help us in obtaining a license in order to be able to rent out the house as a casa rural and/or get our house properly registered at the town hall, catastro and hacienda?
Thanks in advance,
Hans
Raymundo Larraín Nesbitt says:
Morning Hans,
Rural holiday rentals, such as yours, are excluded from the Decree I explain above as they are ruled by their own law in the region of Andalusia (Decree 20/2002).
Regarding attaining a LFO, to the best of my knowledge, a property Fuera de Ordenacion cannot attain it. You have a specialized article on the matter here: Regularisation of illegal property by the Andalusian regional Government
http://www.spanishpropertyinsight.com/2016/02/29/regularisation-of-illegal-property-by-the-andalusian-regional-government/
Regards