Antonio Flores (Columnist)
WHEN Decree 28/2016 on Touristic Apartments was enacted three years ago it was rejected by pretty much everyone with one notable exception: the hotel lobby, which has always secretly sought to complicate the lives of private property owners, its direct competitors in a fierce market.
Shortly after the new law came into force, the Spanish Federation of Associations of Touristic Apartments and Touristic Use Properties (they are not the same and have different regulations believe it or not), went to court to have various articles set aside: the obligation for landlords to provide hot and cold aircon systems was one; the requirement to have an LFO (variously called license of occupancy, license of first occupation or license of habitation) was another.
The Andalusian High Court ruled that aircon was not a necessity in Andalucia but rejected the notion that the LFO should not be a requirement, dubbing it a ‘minimum standard to ensure the property is fit for purpose’. This despite the fact that this document is not legally required to occupy any given property, nor indeed to rent it outside the scope of the touristic rental law (i.e. lets of more than 2 months).
Only the Andalusian Government appealed and the Supreme Court, some weeks back (21/10/2019), bizarrely ruled that obliging owners to provide heating and cooling to tenants was ‘disproportionate’, thereby annulling this obligation.
With regard to the LFO requirement, far from backing off, the Andalusia Government had already issued a clarification note in late 2016 to specifically deny validity to an AFO certificate (tolerating an illegal build) or a Certificate of Non-Infraction as alternatives to LFOs.
And here lies the problem: Marbella – the jewel of the crown – has more than 20 thousand such properties affected by the controversial law, the owners of which are not prepared to lose out whilst waiting for much-awaited bureaucratic solutions (one of which is having a limited ad hoc LFO issued, in line with other municipalities).
Meanwhile, what’s the plan now with these properties? Well, it seems that everyone’s already got one:
- Renting them despite not having an LFO, or having a revoked LFO.
- Renting them with a Certificate of Non-Infraction.
- Renting after applying for an AFO (under the most recent 24/9/2019 Decree allowing urban properties to get one).
What is the common denominator to all these options? Clearly, that the Andalusian Government will have none of them and may issues penalties. Taking the most recent statistics throughout the region, those penalties could amount to €3,000 on average (and potentially up to 18k on this specific infringement and a rental ban of up to 6 months).
Still, with annual rental yields reaching tens of thousands of euros, it may well pay to break the law.
