Our regular legal-contributor Raymundo Larraín Nesbitt explains the changes in rental laws in Spain spurred by the key ruling of the European Court of Justice (ECJ) from last 3rd of September 2014 (Case C-127/12), as well as the new touristic rental laws.
By Raymundo Larraín Nesbitt
Lawyer – Abogado
I am going to split my article in two parts.
The first will deal with the changes in taxation related to rental laws brought about by European Legislation; specifically regarding applicable deductions and allowances at both state and regional level (autonomous communities).
The second part deals with the batch of regional touristic rental laws that have swept the land becoming an ubiquitous requirement. Any landlord wishing to rent privately their Spanish property for a period exceeding one month in a year falls under the remit of this new regulation.
1. Changes in Taxation Brought About by European Legislation
Following up on last month’s article regarding the ECJ’s landmark ruling of last 3rd of September 2014, which put an end to discrimination between residents and non-residents on taxation matters, these changes also affect rental laws.
Law 26/2014 of the 27th of November amends both the Personal Income Tax Act (I.R.P.F.) and the Non-Resident Income Tax Act (I.R.N.R.). These changes came into force on the 1st of January 2015. I had already referred to these changes in December’s and February’s articles: Taxes on Selling Spanish Property and Changes To Spain’s Inheritance And Gift Tax Law.
Law 26/2014 adapts and transposes the decision taken by the ECJ amending internal Spanish national laws. It brings to an end (fiscal) discrimination between residents and non-residents in a wide array of matters; for this article’s sake specifically on rental matters. EU-residents are now treated on par with Spanish residents on taxation matters relating to allowances and deductions. This translates into paying fewer taxes (as non-residents now qualify for deductions and tax allowances which were previously barred to them as these were earmarked for Spanish residents alone).
For the purpose of this article, when I make reference to ‘non-tax residents’ I will always be referring to citizens which are either tax resident in another Member State of the European Union or else in the European Economic Area (E.E.A.). Just to clarify, the below-listed changes do not benefit tax residents outside of the EU or EEA.
Rental Allowances – Situation Prior to the ECJs’ Ruling
Non-resident rental allowances were virtually non-existent prior to this ruling for private individuals. There were few instances in which you could offset rental taxes as they required you employed someone full time and had a permanent establishment in Spain. Obviously of little practicality which was not an option for the vast majority of non-resident landlords.
Post-ECJs’ Ruling – Changes to Spain’s Rental Laws
The ECJ’s key ruling of 3rd of September 2014 marks the inflection point which puts an end to (fiscal) discrimination between residents and non-residents. It forces Spain to amend its internal laws and accommodate the European principles on which the EU is grounded on. The significance of the ECJ’s ruling is that it has opened up the opportunity for non-residents to apply as from the 1st of January 2015 to the below-listed state tax allowances and deductions which were previously reserved only to Spanish residents. In addition, non-residents may also benefit from those set by the autonomous communities where the property is located which have a penchant of being more generous than state law.
When taxpayers are resident in another European Union Member State, or in the E.E.A., the expenses described in the Law on Personal Income Tax (IRPF) can be deducted when calculating the taxable base, provided that proof is supplied that these expenses are directly related to income earned in Spain and have a direct economic connection that is inseparable from the activity carried out in Spain. When expenses are deducted, a certificate of tax residency in the corresponding State issued by the tax authorities of that State must accompany the tax return.
Landlord’s State Allowances and Deductions for Private Home Rental
The following state deductions and allowances can be offset or deducted mitigating the tax bill without prejudice of additional compatible allowances set out by the Autonomous Community contingent on where the property is located. Please take legal advice on the latter for your particular case as for economy of space I will not be listing them below.
The above translates into higher returns for a landlord. Meaning non-resident landlords stand to profit from higher net yields on letting in Spain as from 2015.
Article 24.6 of the Non-Resident Income Tax Act (I.R.N.R.) makes a direct renvoi on these to art. 23 of the Personal Income Tax Act (I.R.P.F.).
1.- Physical Persons
- Deductible Expenses (Art. 23 I.R.P.F.)
Proof must be supplied that the following expenses are directly related to income earned in Spain and have a direct economic connection that is inseparable from the activity carried out in Spain.
- Interests arising from a loan to buy the property (i.e. mortgage).
- Local taxes and administrative charges and surcharges that impact on the rental income or else on the property itself (i.e. IBI tax, garbage collection).
- Expenses arising from formalising rental contracts such as lets or sublets (i.e. Notary and/or Land Registry fees); legal defence (i.e. hiring a lawyer for tenant eviction purposes).
- Maintenance costs may be offset; refurbishment expenses are excluded.
Examples of maintenance costs (deductible): repainting over flaky paint, plumbing, debugging, tennis court green mold cleaning, swimming pool pump replacement, annual lift maintenance, leaking faucet.
Examples of refurbishment expenses (non-deductible): glass curtains, double-glazed windows, parquet, marble floor, extension to property (outbuilding), tennis court, swimming pool, private lift.
Notwithstanding the above, refurbishment expenses may be claimed on selling the property by offsetting them against your Capital Gains Tax liability. Please read my article: Taxes on Selling Spanish Property.
- Home insurance premiums (theft, fire, civil liability etc.). Please read my articles Home Insurance in Spain, Community of Owners’ Insurance Policies and How to Cancel your Home Insurance Policy in Spain. However claims arising from events that diminish the value of a dwelling are non-deductible i.e. fire.
- Utility invoices (electricity, water, gas and landline).
- Concierge, gardening & security services (i.e. in gated communities).
- Home depreciation and amortization. The calculation is 3% on the highest value of the following two: home buying costs or cadastral value; the value of the land is excluded.
- The 100% tax allowance on letting to under thirty-year-olds is suppressed as from the 1st of January 2015. The allowance is now 60% on the net income regardless of a tenant’s age.
2.- Legal Persons
Those set out by the Company’s Income Act (Law 27/2014, of 27th of November).
2. Touristic Rental Laws
Over the last two years almost every autonomous community in Spain has zealously ruled on what is known as ‘viviendas de uso turístico‘ or private holiday rentals. These are laws which seek to regulate short-term lets from private individuals and bring them in line to minimum lodging standards. The laws in all autonomous communities are fairly similar so a couple of common denominators can be extrapolated. A touristic let is generally defined by two elements:
- A dwelling that is offered on a short-term rent to tourists employing the media (internet, newspapers, magazines, travel agencies etc.). There is great diversity in the offered lodging and may range from a letting a whole detached villa in a luxurious seaside resort to renting a single room in a Bed & Breakfast. Some communities expressly bar the possibility of renting a single room.
- The property is let out one or more times a year for a period that normally exceeds one month i.e. summer lets or winter lets in ski resorts. But they can also be rented for days, weeks or months.
In general, properties that meet the following criteria would be excluded from this regulation and would fall under Spain’s Tenancy Act (Ley 29/1994, de Arrendamientos Urbanos).
- Property that is lent to friends/family without any compensation (monetary or otherwise).
- Property that is let to the same person/s for a period that exceeds three months in a year.
- Rural property which falls under its own regulation.
- Landlords who own three or more properties in the same development or ‘urbanización’ fall under a different regulation.
- No more than fifteen people can live in the same property.
Touristic lets are generally obliged to meet the following criteria which by no means is a closed list (I only highlight the main ones). For an accurate list you should check the touristic rental law of the autonomous community where your property is located.
- The property must have attained what is known as a First Occupancy Licence (also known as Licence of First Occupation, Licencia de Primera Ocupación, Cédula de Primera Habitabilidad, Cédula de Habitabilidad or Cédula de Ocupación).
- Full compliance with planning, health and safety, security and disabled access amongst other laws; both at a national and regional level.
- Rooms must be ventilated and have blinds or shutters.
- Internet connection available in every room.
- Air conditioning unit in every room (as a fixed fixture, not a portable device).
- When properties are let during the winter season (October through to April) a heater must be made available in every room that is let (as a fixed fixture, not a portable device).
- First aid kit.
- Cleaning service at the start of new lodgings.
- Rooms must have adequate furniture.
- Complaints book.
Touristic guides, maps of the surroundings (books).
My advice is that landlords would do well to seek legal advice and determine if their property complies fully with all laws. Failure to comply may lead to stiff fines. Fines range from thousands of pounds to dozens of thousands of pounds.
E.g. landlord has not applied for a touristic letting licence from his town hall or the property is unregistered at the special register for touristic properties.
E.g. landlord is reported because he does not have a ramp built for disabled access.
E.g. landlord does not have a wi-fi connection set up.
E.g. landlord has not attained a Licence of First Occupation from local planning authorities.
My Take on Touristic Rental Laws
I had already written an admonitory article back in 2013 (New Measures to Bolster Spain’s Ailing Rental Market) on the worrisome trend the Autonomous Communities were following on enacting their own laws to regulate touristic lettings on the wake of Law 4/2013 which (clumsily) left the door ajar to them.
I feel compelled to excoriate these touristic rental laws which are a bad idea as in the best of cases they impose a new set of obligations (and associated expenses) to landlords which severely impact on their rental income and at worst require a rental licence is attained under threat of hefty fines on non-compliance. In some cases individuals will not be even allowed to rent as these laws (artificially) restrict competition. At no time should public administrations limit the rights and usage of private homeowners to rent out their properties. It is a direct attack on private property which in my eyes is a red line that should not be crossed.
This unnecessary batch of new regional laws only make the prospect of renting for small-time landlords – which are legion – all the more difficult (acting almost as a deterrent) whilst at the same time make life easier on large powerful hotel groups as competition is removed. In other words, these regional laws thwart competition in a free market economy benefitting large corporations at the expense of the little people who make a meagre supplementary income by letting property out. The field is uneven.
Two years on, the majority of the seventeen autonomous communities which make Spain have jumped on the band wagon passing legislation on touristic lets. Landlords would do well to seek legal advice on whether their property complies fully with the new spate of regional regulation. Some of these laws (i.e. Balears) require that local authorities issue a ‘rental licence’ before you are allowed to let and impose hefty fines on non-compliance. The obligations are (formally) geared to set a homogenous minimum standard to rent property and in some cases require a substantial upfront investment which may negate altogether the very idea of letting as the numbers may not stack up in every case.
If you examine the new requirements landlords are expected to meet they resemble closely those we have come to expect from the hotel industry (i.e. free wi-fi, A/C units, professional cleaning service etc.). It stands to reason you cannot possibly demand from private individuals the same ‘minimum’ (hotel) lodging standards as those from financially powerful multinational hotel groups. It’s daft.
Private individuals in many cases will not have the financial means to acquire all the ‘minimum’ gadgets let alone face the grim prospect of being fined dozens of thousands of pounds on non-compliance. If these regional laws are enforced harshly by authorities it will leave the business of private home rentals to affluent people or groups; the only ones who will be able to afford and keep up with the financial pace demanded by the authorities. Borrowing a quote from Thomas Jefferson — “There is nothing more unequal than the equal treatment of unequal people”.
Again the cynic in me asks cui bono? Who stands to gain more from such changes in home rental regulation? Definitely not landlords (or tenants for that matter). The powerful hotel industry does. Property has been let to tourists for decades without major hindrances (in fact Spain’s whole unbalanced and undiversified economy hinges on tourism and construction; they account for well over 20% of its GDP).
Why now? Because after a huge property boom that lasted almost a decade the properties now on offer have trebled whilst demand remains sluggish. This has in turn dramatically increased competition for hotel groups which has severely dented their bottom line (and miffed their shareholders). They have relentlessly lobbied over the last years to curtail what they deem as ‘unfair competition’. Competition is always good for the broad economy as it drives prices down and improves services. Competition at its heart is what keeps people and companies on their toes. Remove competition and companies become complacent, services deteriorate and prices soar. In a competitive market bad companies are weeded out of the market by consumers through natural selection. More so in the days of internet with professional bloggers that take delight on rating hotel accommodations for the benefit of all us punters. Remember my words next time you have to pay for a pricey lodging in Barcelona or Madrid.
You can find an insightful article from journalist Kevin Brass (New York Times, Wall Street Journal) with poignant comments on the matter of administrations encroaching on private short-term lettings from the 8th October 2014: Opinion: Attacks on Short-Term Rentals Are All Hype.
List of Approved Touristic Rental Laws
Moving on from my rant, I have compiled a comprehensive list of the autonomous communities in Spain with approved touristic rental laws at the time of this article’s printing. The most high-profile absentee is Andalusia which draft law has sparked hot controversy. Regardless, I have included below a link to its draft law out of interest to anyone.
Private holiday rental laws are here to stay. It is a landlord’s duty to acquaint himself and comply with the regulation of his own autonomous community. Some aspects of the below-listed regulations vary widely so it is highly advised professional advice is sought beforehand to be on the right side of the law. In some instances, such as Balears, holiday rental licences are fairly restrictive and hard to attain.
- Andalusia: Unapproved; only a draft: Borrador del Decreto que regula las viviendas de uso turístico en Andalucía
- Aragón: Decreto 167/2013, de 22 de octubre, del Gobierno de Aragón, por el que se aprueba el Reglamento de los apartamentos turísticos en Aragón
- Asturias: Updated regulation pending. Decreto 60/1986, de 30 de abril, sobre ordenación de los apartamentos turísticos and Decreto 34/2003, de 30 de abril, de viviendas vacacionales.
- Balears: Require a holiday rental licence for villas and townhouses; apartments are excluded. Decreto Ley 6/2013, de 29 de noviembre, por el que se modifica el artículo 52 de la Ley 8/2012, de 19 de julio, del Turismo de las Illes Balears
- Basque Country: Decreto 198/2013, de 16 de abril, por el que se regulan los apartamentos turísticos
- Canary Islands: Updated regulation pending. Decreto 142/2010, de 4 de octubre, por el que se aprueba el Reglamento de la Actividad Turística de Alojamiento
- Cantabria: Decreto 19/2014, de 13 de marzo, por el que se modifica el Decreto 82/2010, de 25 de noviembre, por el que se regulan los establecimiento de alojamiento turístico extrahotelero en el ámbito de la Comunidad Autónoma de Cantabria
- Castilla-La Mancha: Unapproved.
- Castilla y León: Decreto 75/2013, de 28 de noviembre, por el que se regulan los establecimientos de alojamiento de turismo rural en la Comunidad de Castilla y León
- Catalonia: Decreto 159/2012, de 20 de noviembre, de establecimientos de alojamiento turístico y de viviendas de uso turístico
- Extremadura: Unapproved / updated regulation pending. Decreto 182/2012, de 7 de septiembre, de ordenación y clasificación de apartamentos turísticos en Extremadura
- Galicia: Decreto 52/2011, de 24 de marzo, por el que se establece la ordenación de apartamentos y viviendas turísticas
- La Rioja: Unapproved.
- Madrid: Decreto 79/2014, de 10 de julio, por el que se regulan los apartamentos turísticos y las viviendas de uso turístico de la Comunidad de Madrid
- Murcia: Updated regulation pending. Existing regulation is from 2005. Decreto 75/2005, de 24 de junio, por el que se regulan los apartamentos turísticos y alojamientos vacacionales
- Navarre: Updated regulation pending. Decreto Foral 230/2011, de 26 de octubre, por el que se aprueba el Reglamento de Ordenación de los Apartamentos Turísticos en la Comunidad Foral de Navarra
- Valencian Community: Decreto 92/2009, de 3 de julio. Reglamento de Alojamientos Turísticos y empresas gestoras de la Comunitat Valenciana.
Changes to Spain’s Rental Laws – Conclusion
Any change that implies paying fewer taxes is always welcome. The less Administrations meddle on private affairs and businesses, all the better.
If you own property in Spain and plan to rent it out for a period exceeding one month in a year I strongly recommend you seek legal advice to comply with the obligations set forth by your autonomous community.
“Freedom is the right to question and change the established way of doing things.” – Ronald Reagan
American 40th US President (1981 – 1989). He steadfastly contributed to the Cold War victory which led to the fall of the Berlin Wall and the collapse of the U.S.S.R.
- Home Rental Taxation – Spain’s Tax Office Rental Advice in English (A.E.A.T. or Hacienda)
- Renting in Spain: Top Ten Mistakes – 8th of June 2011.
- Let-to-Buy in Spain: The Smart Choice – 8th of April 2012.
- Community of Owners, or Comunidad de Propietarios – 8th of July 2012.
- Community of Owners in Spain: Challenging Assembly Resolutions – 10th of October 2011.
- Letting in Spain: The Safe Way – 10th of October 2012.
- New Measures to Bolster Spain’s Ailing Rental Market – 8th of July 2013.
- Tenant Eviction in Spain – 8th of June 2014.
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. No politician was harmed on writing this article. VOV.
2015 © Raymundo Larraín Nesbitt. All rights reserved.
Reproduced with kind permission of Spanish Property Insight.
- Laws governing the rental of holiday homes in autonomous regions of Spain.
- Short Stays in Madrid – Just became a little longer.