1. Linkage of the Tourist License to the Property
The new resolution of July 30, 2025 establishes that the tourist license is linked to the property, not to the individual holder. Therefore, a change of ownership (by sale or other transfer) does not invalidate the license, and it remains valid for the new owner. In addition, possible delays in updating the Tourism Registry cannot prevent the legitimate use of the dwelling for tourist purposes as long as the right persists. However, it may have administrative consequences (e.g., penalties for failing to report the change on time). The activity remains lawful, but the change of ownership must be reported, as required by regional and state regulations.
In other words, the tourist license “follows” the dwelling, not the person. If the property is sold or transferred, the license remains valid and only the change must be notified to the Tourism Registry.
2. Effects of the Reform of the Horizontal Property Law (HPL) [April 3, 2025]
Since April 3, 2025, in Andalusia, any new vacation rental activity in a building under horizontal property regime can only be initiated if the Homeowners’ Association approves the activity with a 3/5 majority of all owners and shares. This qualified majority is the one provided for in the HPL for agreements that condition the tourist use of dwellings.
This new requirement is not retroactive:
- If the dwelling was already being operated for tourist purposes and had an active license before April 3, 2025, it may continue to operate, even if there is a change of ownership.
- It would only be limited or prohibited if the community bylaws (duly registered and approved unanimously) expressly prohibited it.
Important:
- The mere existence of a later community agreement cannot invalidate a valid and pre-existing license, unless the prohibition was included in the bylaws before the acquisition by the new owner.
- A community agreement to prohibit or restrict tourist use cannot be applied retroactively to already active licenses or previously initiated activities, unless the prohibition was registered in the bylaws prior to the acquisition.
Doctrine and Supreme Court case law confirm that a statutory restriction only affects third parties if, in addition to being registered, it is explicit and prior to the acquisition.
3. Bylaws
If the registered bylaws of the community expressly prohibit tourist rentals of dwellings, that prohibition may block the use, even if an administrative license exists.
Bylaws are the proper instrument to establish this type of use limitation.
These restrictions bind any current or future owner as long as they remain valid and duly registered, pursuant to the HPL.
4. Practical Observations
a) Properties with a license granted and active before April 3, 2025
The tourist license remains valid after the transfer of ownership, since it is legally tied to the property and not to the individual owner. This right cannot be retroactively removed by community agreements adopted after the license was granted.
However, in practice, for the new owner to have the change of ownership formally registered in the Andalusian Tourism Registry, the Administration requires additional documentation, including:
- Notification of the change of ownership to the Junta (submitted online with a digital certificate).
- Updated land registry extract (“nota simple”) from the Property Registry.
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Certificate issued by the Secretary or Administrator of the Homeowners’ Association confirming the express and valid approval for the tourist use of the dwelling.
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Any additional documentation in the case of multiple co-owners or representation.
This means that although the license remains valid from a legal standpoint, in practice the new owner must prove the community’s approval in order for the Registry to record the transfer. If the community’s bylaws already contained a prohibition on tourist rentals at the time of acquisition, or if the community refuses to issue the required certificate, the change of ownership cannot be completed and the use of the license will be effectively blocked.
Key clarification on retroactivity
- Community agreements cannot be applied retroactively to cancel licenses that were already active and legally operating before their adoption. Those licenses remain valid as acquired rights.
- Nevertheless, the administrative process to register a change of ownership does require proof of community approval. Therefore, in cases where the bylaws already prohibit tourist rentals, the practical effect is that the new owner cannot continue the activity, even if the license existed before.
b) New licenses requested after April 3, 2025
In the case of applications submitted after that date:
- Approval from the Homeowners’ Association by a three-fifths majority is mandatory in order to begin the activity.
- If the bylaws prohibit the activity, tourist rentals cannot be carried out even if an administrative license is obtained.
5. Municipal Particularities
- Málaga city: suspension of new licenses only affects applications submitted after the entry into force of the local regulation. Already granted licenses are not affected by the suspension.
- Fuengirola: requires an independent entrance for new license applications. It does not affect dwellings already authorized before the new criterion.
6. Conclusion
Tourist rental activity may be limited or conditioned by a Homeowners’ Association agreement, but such limitation only applies to activities initiated after the adoption of the agreement. For this purpose, the law requires a three-fifths majority of all owners and shares.
Likewise, duly registered agreements or bylaws may establish restrictions on the private use of properties, including the prohibition or limitation of tourist activity. These restrictions are fully valid and binding on both current and future owners while they remain in force.
It should also be highlighted that, since the license is now legally tied to the property rather than the individual owner, there are strong arguments to challenge the current administrative requirement of community consent upon a change of ownership. If the license was granted before April 3, 2025 and remains valid regardless of who owns the property, then a transfer of ownership should not trigger any new review by the Homeowners’ Association. This reasoning provides lawyers with solid grounds to contest the Junta’s current procedure.
In short, the applicable legal framework is based on the Horizontal Property Law, regarding the procedure for adopting agreements, the required majorities, and the binding effectiveness of community bylaws.
