The sale of any tourist property in Andalucía includes its licence for holiday rental

A ruling from the directorate-general for legal security and public faith, attached to Spain's Ministry of Justice, resolves a key criterion for the holiday rental sector in Andalucía by establishing that any tourist registration of a property is linked to said property, not to the individual. In other words, it states categorically that the sale of a tourist property in Andalucía entails permission to continue any holiday rental activity as long as the property still complies with the requirements established by the regulations from the regional government. The resolution states that the tourist licence in Andalucía is not assigned to a named person, but is linked to the property and not to the previous owner. Experts in the field value the recognition that, when a property with a tourist licence changes ownership, the licence remains valid and active, provided the property maintains the objective conditions required by the regulations.

Lawyer Jacob Salama explains on Linkedin that this ruling "ensures the continuity of the right to operate tourist accommodation, protects real estate investment and strengthens the legal security for owners. This doctrine stops simple administrative delays from preventing legal tourist rentals to continue to operate and recognises the true nature of the licence: an attribute of the property that increases its value and stability."

The ruling follows an appeal lodged by the owner of a tourist property in Torremolinos against Spain's land registry for suspending the allocation of a unique registration number for a tourist property rental on the grounds that the property is registered in the name of a person other than the one listed as the owner on the regional tourism register for Andalucía. After several rounds of appeals, the registrar issued a new assessment in May, in which she maintained her position and referred the case to the general-directorate for legal security and public faith. In its ruling, it contradicts the land registry assessment and supports the view that the exercise of holiday rental status is linked to the property's compliance with the requirements established in law, not to the individual. This argument is supported by consolidated case law from Spain's Supreme Court and the High Courts of Justice, which clearly differentiate between personal licences, or those linked to the applicant's qualities, and real licences, which are those linked to the objective conditions of the property. Among others, the Supreme Court rulings of 27 June 1994 and 19 March 1997 stand out, stating that a subjective change in ownership does not terminate the licence as long as the objective conditions persist.

This decision contradicts what has been maintained until now by Turismo, the Junta de Andalucía's tourism department, which approves all tourist rental licence applications. According to Turismo, the permit to carry out any tourist rental activity is not transferable when the property in question is sold.

Moreover, the ruling coming from this department within the Ministry of Justice states that "... this obligation to update information or to communicate any modification affecting them does not determine that the licence is linked to the person to whom it was initially granted, as the registrar seems to understand. On the contrary, a joint analysis of the regional legislation, the regulations on the bases of local government and the case law from the Supreme Court reveal that such a licence is not personal in nature, but real, and, therefore, its validity and effectiveness are not linked to the personal circumstances of the holder of the licence, but to the objective characteristics of the dwelling on which it is granted".

Juan Cubo, president of Avva-Pro, the association for tourist rentals in Andalucía, views this ruling "very positively", highlighting that it "confirms an essential criterion for the sector: tourist registration is linked to the property. We believe it strengthens legal certainty at the administrative and registry level, but carrying out this activity remains subject to the region's legal framework applicable in each case". He stresses that "thanks to the 'responsible declaration' mechanism, tourist activity can be started quickly and, when property ownership is transferred, it is sufficient to notify relevant authorities of the change of ownership. It is not necessary to restart the procedure, as long as the property's conditions are maintained." However, Cubo reminds us that "the new owner must respect any agreements of the homeowners association, in accordance with [Spain's] Horizontal Property Law, which may have limited or placed conditions on tourist use in that building."

The resolution, which Cubo points out is binding, states that "the tourist use licence must (...) not be linked to the applicant's qualities, but rather to the conditions of the licensed 'project' (the property or accommodation unit in which the tourist activity is to be carried out) and, consequently, must be considered valid for as long as such conditions persist, regardless of the personal circumstances of the licence-holder."

This ruling comes at a time when the holiday rental sector is growing steadily across this region of southern Spain. Data from Turismo as of 26th August confirms that supply has already surpassed the 150,000-property mark for holiday rentals. These properties bring the total number of vacancies to 789,596 for the whole region. The Costa del Sol province takes the lead with 86,557 properties, totalling 457,262 beds. In Malaga province, Marbella is the municipality with the most accommodation of this type, (15,322 properties with 89,279 beds). Malaga city comes next with 12,876 properties for tourist use (65,480 beds).

Behind Malaga comes Cadiz province with 21,178 properties and 115,057 beds, then Almeria with 12,815 properties and 63,139 spaces. Seville has 11,481 properties for holiday rentals, with 57,525 beds, Granada with 9,587 properties and 51,040 beds, Huelva with 4,073 rentals, Cordoba (3,731 properties) and, lastly, Jaen with 928 registered rental properties.

This ruling can be appealed before the civil court in Malaga.