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A court ruling in Tenerife has handed a community of owners a decisive victory in their long-running battle against holiday rentals, in a case that hinges on statutes drawn up nearly three decades ago — long before platforms such as Airbnb existed.
The 1997 statutes that made the difference
The community’s statutes were drafted in 1997, years before the explosion of holiday rental platforms. As a result, they made no mention whatsoever of this type of accommodation and therefore did not expressly limit it. However, they did set out a series of prohibitions — a list of banned activities that included guesthouse accommodation (boarding houses) — and prevented owners from altering the designated use of their homes, namely residential use.
That provision proved crucial in allowing residents of the community on the island of Tenerife to halt the exploitation of holiday flats in the building. In a recent ruling, the Provincial Court of Santa Cruz de Tenerife dismissed an appeal lodged by an owner who wanted to continue using his property for holiday rentals. The decision is now final, as no appeal in cassation was filed before the Supreme Court, this newspaper has been able to confirm.
A community vote and a legal challenge
The claimant had challenged the agreement adopted by the community of owners in October 2022. That extraordinary general meeting declared, by 69 votes in favour and five against, that since the community’s constitution, homes could not be used for holiday rentals in any of their forms. The agreement gave owners who were operating holiday flats one month to return their properties to residential use.
One owner took that agreement to court. His claims were rejected both in a court of first instance in the Santa Cruz de Tenerife judicial district and in the Provincial Court. The operator of the holiday flat argued that the meeting’s decision caused him serious harm and was abusive. He also noted that in 2018 the community itself had rejected a proposal to include holiday rental rules in its statutes.
The clause at the heart of the case
In its ruling, the Provincial Court focuses on Article 14 of the statutes drawn up in late 1997. That clause stipulates that homes must be used exclusively for what their own designation indicates, and prohibits owners from carrying out activities that alter that use or that are harmful, dangerous, unhealthy or offensive to morality, good customs and public order, or that disturb the silence and tranquillity needed for the rest of the residents, or cause nuisance of any other kind through the common elements.
The community’s statutes expressly prohibit consulting rooms and/or professional offices, boarding houses, clubs, academies and associations. In its ruling, the court starts from a principle favourable to the claimant: according to Supreme Court case law, prohibitions on the use of a home must be interpreted restrictively and must appear expressly in the statutes.
In the Tenerife case, the Provincial Court applies the criterion adopted by the Supreme Court in other similar situations and equates holiday rental activity with guesthouse accommodation — the boarding houses listed in the community’s statutes. It therefore concludes that the list of prohibited activities covers holiday flats.
Nor does the claimant benefit from what happened at the 2018 meeting. Owners may amend their statutes with the necessary majorities, but until they do so, the statutes must continue to be applied as drafted, the ruling states.
Aligned with settled Supreme Court case law
Lawyer Rosa María Zárate argues that this ruling is in line with recent, now well-established Supreme Court case law. She explains that the key lies in the existence of an initial agreement — the 1997 statutes — that is registered at the Land Registry and to which owners adhere when they buy their homes. That agreement prevents any change of use.
As the Provincial Court recalls, the Supreme Court has already classified holiday rental as an economic activity that is essentially identical to using flats for guesthouse accommodation. “Therefore, devoting a home to an economic activity (holiday rental) constitutes a change of use prohibited by the community statutes,” the lawyer states.
According to Zárate, what matters is not so much whether a boarding-house activity prohibited by the statutes is being carried out, but whether it can be considered lawful to modify a statutory prohibition (the change of use of homes) without a unanimous agreement of the owners.
What the 2025 reform of the law changed
The 2025 reform of the Horizontal Property Act introduced a significant change regarding holiday flats. In its previous wording, Article 17.12 established that communities of owners could limit or place conditions on holiday rentals with a three-fifths majority. In the latest amendment, the possibility of prohibiting them outright was also incorporated. It also allows the share of common expenses to be increased by up to 20% for homes used in this way. The law specifies that such agreements do not have retroactive effect.
However, as Zárate points out, in the Tenerife case it is not this article that applies, but Article 17.6, which stipulates that agreements involving the approval or modification of the rules contained in a community’s statutes require unanimity. The Provincial Court considers that the 2022 owners’ meeting agreement did not create a new prohibition, but rather applied a limitation that already appeared in the 1997 statutes.
Support in rulings from Oviedo and San Sebastián
The ruling by the Provincial Court of Santa Cruz de Tenerife relies on the doctrine set out by the Supreme Court’s Civil Division in several decisions since 2023. In one of these, the high court ordered the cessation of holiday homes in a community in Oviedo after finding that the statutes prohibited professional, business, commercial or trade activities, and confirming that holiday exploitation constitutes an economic and business activity. Another ruling, in a case from San Sebastián, made clear that seeking to authorise an activity prohibited in the statutes requires the unanimous agreement of the owners. In any event, the case law requires an analysis of the specific wording of each set of statutes.
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