Do I need a license to rent out my apartment? Valencia region

Legal tip 122. Do I need a license to rent out my apartment? ( Valencia Region)

 

Maria - we have been told by our Administrators that anyone who lets out their property in our urbanisation - apart from lets to family and friends - is breaking the law.  He stated that our urbanisation is classified as a "residential area" and you can only do commercial letting in a "holiday resort area".  He also said that anyone applying for a licence would be refused on these grounds.

Is this accurate and, if so, can we get the area re-zoned from residential to holiday resort?

Our urbanisation has less than 10% permanent residents and I think it would become a ghost town if the tourists were not able to come and rent here! 

I am an interested party re the question, so is the administrator right or wrong, maybe I have missed something but don't feel the question has been answered.

This is a very interesting question and also raises other points .For instance does that mean that if a development is listed as a "residential area "  are the owners exempt from the rental property tax which is due whether owners rent or not ? and how would one find out what an area is zoned as ie " residential  area  " or " holiday  resort area "  before purchasing as this has not been mentioned by any of the agents showing me  properties . This leads me on to another question I was wondering about  .Is this tax (sorry can't remember the proper name ) paid by all in Spain who own a second home even if they do not rent  .It seems a very unfair way  to tax on anticipated rather than real income . I can't think of any other EU country where this is happens .Thanks in advance to any one with information on this topic .Sorry if I am asking the obvious but I would like to learn all I can to avoid problems in the future .

I typed "Rules for renting out your property" into the EOS search facility and came up with a few different threads.

In one written this year it says that unless there is something in the community rules against doing so there shouldn't be a problem.  However, I believe that everyone has to register (not sure exactly where) when they are privately letting out their property, and if you are doing it through an agent they do the paperwork on this.  I've only rented via an agent, so don't know all the ins and outs on this, except that my agent informed me that he had done the necessary paperwork.

Hope this is of some help

whether you rent or not you are going to pay tax - search the forum

Hi - my question is really about the people who want to do everything legally - get approval from the council and pay their taxes. 

Our Administrator is saying however that everyone who is renting out their properties in our urbanisation - agents included - are breaking the law as we are classed as residential and not as a holiday resort.

Maria - if you see this post perhaps you can clarify this for me?

Thanks

You can of course rent out your apartment even if it is residential.

One thing is a touristic apartment and a very different one are holiday houses as every residential unit being rented is:

You may find this article clarifying:

http://www.eyeonspain.com/spain-magazine/regulations-rentals.aspx

Thanks Maria - the article was helpful.  I think our Administrator was getting confused between Touristic Apartments and Holiday Houses.

However, can you please clarify exactly what an owner has to do?  You say that when you want to rent out a Holiday House you need to communicate this to the Touristic Services of the Autonomous Region.  I have spent hours trying to find details of this on the internet without success.  I did find the Valencian website - that took ages! - but there is nothing there which relates to informing them about a holiday house. 

The article also states that you need a legalised duplicate of the communication - is that an official letter back from the authorities saying that you can now rent out your property?

Thanks.

Is your property in Valencian region?

Best,

Maria

Yes we are in Orihuela Costa, part of Alicante and Valencia.

Thanks Maria.

A pleasure!

Maria

Dear Maria

There are two important issues here and I beg to differ on your opinion -

1. Of relatively minor importance: The deposit referred to as €250.00 unless otherwise agreed is the Inventory Deposit (Fianza)

2. I have carefully read the Spanish text and would agree that it is slightly ambiguous about who has to register. On the one hand it mentions comercilisation and specifically refers to Internet advertising but elsewhere mentions more than 1 property. However, I have heard a professional (legal) opinion on the issue and the advisor put the question directly to the Valencia Agency for Tourism. The result was that ALL properties available for holiday rentals, whenever those rentals were commercialised and even if only one property was owned, then it had to be registered and the details stated in the advertisement.

Furthermore, according to the preamble, it is a stated objective of the new law to resolve an undesireable and unforseen situation that has developed due to the dynamic nature of the Internet. That is that it is possible and common for one party to contract holiday rentals directly with another without any form of mediation or regulation.

I have written an article on the topic and there is a serious variance between your opinion and mine - and that is very worrying for me! Perhaps you would like to have a look -

ARTICLE: moraira-info[dot]com/Articles/Renting-Regulations.htm

Sorry but I am not allowed to post a link. Perhapos the moderator would like to help with it as this is such an important topic

Homefinder

Dear Homefinder:

1.It seems to me we agree on this. 250 € is the maximum as deposit.

2. I need to disagree with you and with the interpretation given by the Tourist Authorities in Valencia as provision 8.2 of the said Decree clearly establishes:

2. La obligación a la que se refiere el apartado anterior será potestativa para quienes con título bastante cedan directamente una sola vivienda turística. No obstante y en cualquier caso, la vivienda deberá cumplir los requisitos que este decreto exige, al menos, para la categoría estándar, y estará sujeta al resto de prescripciones de esta norma

Which in a free translation by me means: obligation described in precedent paragraph is not obligatory ( it depends of the will of the owner) to those putting just one touristic house in the market. Nevertheless and in any case, the house needs to meet  the requisites of this Decree, at least for the standard category, and will be under the rest of other prescriptions of this Decree.

So it seems clear to me that is you are jus putting one property into the Touristic Market... there is no need for registration.

Dear Maria

Thank you for that interesting reply. Below I have state what I read and understand. Please feel free to comunicate with me via the PM service if you wish.

Homefinder

1. There is a difference between "Deposit" (Anticipo) and "Inventory Deposit" (Fianza) and the €250 maximum refers to the Inventory Deposit.

2. Yes, I agree that Art 8.2 would SEEM to allow the owner of a single property to opt for registration if the property is rented directly.
However, looking at the rest of the decree -

The Preamble refers to the previous Decree 30/1993 with two objectives: To improve quality and deminish the number of properties that escaped the control of the adminstration.
It goes on to state that that decree failed in respect of the second objective for various reasons. One of these was that the eruption modern forms of commerciaizacion permitted direct rental arrangements without the intervention of a third party making touristic (and other) infraccions difficult to investigate by the authorities.
I think "other" refers to frauds like the "Morairaway" scam, which registration will help to prevent.
Consequently the Decree was designed to resolve that situation.
There is not much difference between to new and old decrees except in respect of those who came under control. Consequently, if the objective was not to control the single property owner renting directly, they might have just as well not bothered.

Art 2.1.b defines a "Vivienda Touristica" when canals of turistic comercialisation are used. It also defines these canales as being via touristic operators and other canals including the Internet.

Art 2.2 states that those with one property are not obliged to register if the rent directly and goes on to define directly (directamente) as when they are placed for the disposition of the user by the owner.
Here then could be the ambiguity because if the owner uses a touristic operator or offers it via a web-page then it is not offered directly but via an intermediary i.e. the operator or the web-page.

Art 8.2 you mentioned above.

Art 10.3 states that the registration details must be published by owners who rent directly but does not mention the owner of a single property.

Art 10.4 states that those who have opted out under Art 8.2 must make these circumstances clear.

Art 10.5 warns that the there will be special vigilance as far Internet publicity is concerned.

Since 9th July hundreds of people have "done their brain in" over this. Recently a group of us sought a professional legal opinion on the issue. The abogado agreed that there could be some ambiguity and telephoned the Valencia Agency for Tourism. The result was as I said and, to be precise, registration is obligatory for the owner of a single property who -
a) "Commercialises" the rentals (as previously defined) AND -
b) ... offers it with hotel trade (not catering) services.

That is all my personal opinion. I also believe that the authorities are currently preparing a campaign of investigation and will prosecute offenders. Consequently it is important to clear up this issue and advise those concerned as quickly as possible.

Also please note that all of this only applies to the sate of Valencia (Alicante, Valencia and Castellon). Other autonomous states have different laws.

I can not see marketers of just one property being fined due to non registration, accordin to the Decree. But,  if they are... they will have a reason to claim against it.  Law is above the government and the administration.

I was really looking forward to Maria's answer to my last post, just 3 lines and straight to to point - ah well!

Maria: You are probably right and it is likely that the Generalitat Valencian will be challenged in court over this, especially considering the way it is written. However, as far as I can see they do include individual villas owners and do intend to impose fines if they don't comply.

I have to admit to being heavily biased because I am a rental agent myself. However, apart from controlling quality and the way that holiday rentals are contracted, there is another very good reason for the new law. That is to positively identify the renter.

Do you know about the "Morairway Scam"? Morairway.com was registered with DomainsByProxy.com and they started INVENTING a portfolio of beautiful villas around the Costa Blanca with photos picked up from various websites. They then set up offices all over Europe (even one in Javea) and started taking money for holiday rentals for July, August and September. At the end of July they de-camped and have disappeared from the face of the earth, leaving hundreds of holidaymakers without their accommodation or the money they paid. The police all over Europe are looking for the perpetrators but, even if they manage to find them, it is unlikely that the holidaymakers will get their money back.

This is not the first time something like this has happened but never on such a large scale. As long as it remains so easy, it will happen again. A registration scheme at least provides positive identification. I realise that there will always be a risk when holiday rentals are contracted without paying by credit card or without a bond. However, the chance of quick detection should certainly deter the villians from setting up a large-scale fraud operation.

Homefinder

MariadeCastro said -

"I can not see marketers of just one property being fined due to non registration, accordin to the Decree. But,  if they are... they will have a reason to claim against it.  Law is above the government and the administration."

I don't think that it will work like that at all but I will explain.

Registration has been with the rental agencies since 1993, so we know what it is all about. The maximum fine for minor infractions, such as non-registration of a property is €3,000 for the first offence. I got caught once and suffered a €110 "wrist slap". The process is always the same -

First the offender is informed of the evidence of the inspection and an "Instructor" is nominated.

Then the Instructor advises the decision and the amount of the fine (if this is the case) and advises the offender of the rights of appeal against the decision and a limit of 15 days to submit.

They only want to make the point in the first instance and get the word out, so that the majority decide to comply. Therefore, the first batch of inspections will sanctioned with a relatively small amount, typically between €500 and €1,000. That way the majority of the alleged offenders will just pay because an appeal will involve paying legal fees and might not be successful in the end anyway - at least that is what they might think!

And that would be preferable to, and less costly than, a publicity campaign, which they have not done because very little has been written about it except in the Spanish press - and here of course!

Maria: Surely, in your experience, this is exactly the way that these authorities work?

Homefinder