Seasonal Leasing / Touristic Leasing

This is a particular topical subject. Why is there so much confusion and controversy about touristic rentals?

Because there exists a lot of misinformation and a hidden interest of the hotel industry not to clarify the distinction between seasonal rental (regulated by the Law of Urban Leases, national law) and touristic rental (regulated by the Law 8/2012 of Tourism, autonomous law).

Who can lease his property?

Any owner has the right to rent his property, if he does it in compliance with the law, because the right of property cannot be limited in its exercise.

That means that everybody has the right to lease his property legally for days and/or weeks?

Of course, if the owner acts in compliance with the applicable law, which is the Law of Urban Leases, in the case of seasonal leases and the Law of Tourism of the Balearic Islands, in the case of touristic holiday leases.

Which services can be provided by an owner who leases his property by means of seasonal leasing?

No touristic services, which include: Airport pickup, periodical cleaning during the stay, laundry services of bed linen and lingerie, replenishment of household effects, 24 h service client hotline, etc.

Are common repairs of the property, pool maintenance, etc. considered as touristic services?

No, not at all, they are mere reparations of the property.

Can all types of properties request the touristic license in the Ministry of Tourism?

No, only the following types of properties may apply for the before mentioned license:

  • Detached or semi-detached one family houses, or analogous.
  • Maximum of 6 bedrooms and a maximum capacity of 12 persons.
  • Minimum of one bathroom for 3 persons.
  • Stays of short duration, max. 2 months.

Which are the main differences between seasonal leasing and touristic leasing?

 

 

SEASONAL LEASING

TOURISTIC LEASING

Action for claiming unpaid rents

5 years

3 years

Civil liability insurance

No obligation

Obligation

Accidents of the tenant/s

No responsibility of the owner

Possible responsibility of the owner

Commercialisation

Prohibition of commercialisation in tourism channels

Commercialisation in tourism channels

V.A.T.

 

No accrual of VAT

Accrual of VAT.

Eviction

Through Court

Through local police

Sanctions

No sanctions

Sanctions between 4.000 € and 40.000 €

 

Are estate agencies considered tourism channels?

They are not classified as such, thus seasonal rentals can be promoted by real estate agencies.

European intermediary companies such as Homelidays, FEWO, Homeaway, Owner’ Direct, etc. are not classified as tourism channels.

Is it recommended to sign a rental agreement between the owner and the tenant?

Always and in all cases, a contract between the owner and the tenant should be completed. In the case of seasonal leasing two things should be included in the contract:

a) that it is a seasonal leasing in compliance with the Law of Urban Leases; and

b) that there are no touristic services provided during the stay.

Can the owners rent their property to an agency for its commercialization?

It is perfectly legal but it must be considered which type of rental is offered by the agency: If tourist services are offered, the property must be in possession of the respective license for touristic holiday rentals from the Ministry of Tourism.

If it has no license, only seasonal leasing can be offered (without offering any direct or indirect touristic service, as commented above). It is very important to sign a contract between the owner and the agency.

Can Communities of Owners forbid the touristic lease?

This does not make sense, because in multi-family buildings leasing is prohibited by law. In many cases so far, owner communities have prohibited seasonal leasing, but this is illegal and can be appealed judicially because property rights cannot be limited in its exercise.

Does the Law  of Tourism of the Balearic Islands contain any presumption?

Art. 50.2 of the Law of Tourism previews that there exists a touristic commercialization, if it cannot be accredited that the contract has been signed in correspondence to the Law of Urban Renting (seasonal renting). Therefore should be followed the suggestions of the present document.

Which kind of taxes have to be paid for rental incomes?

They have to be declared in the annual tax declaration to an interest of 24,75%. The declaration has to be presented quarterly if taxes have to be paid and annually of the declaration is negative.

Which concepts can be subtracted from the incomes?

Basically the amortization of the property (2% p. a.), the interests of the mortgage, taxes like the property tax- IBI and costs of maintenance, etc.

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