It is common to receive enquiries from clients asking about the possibility of selling or buying tourist housing licences, especially in the city of Barcelona. When the sale of the tourist licence is carried out together with the sale of the dwelling used for this activity, the answer is quick and easier. There are greater problems when buying or selling a tourist licence without the simultaneous transfer of the property used for the tourist activity or cancellation of a tourist housing.
We should note that, due to the tourist potential of many cities in Catalonia, the existence of a tourist licence increases the value of the dwelling. And there are also people who think of the possible transfer of the licence, while maintaining ownership of the flat, as a way of obtaining income (which has been accentuated due to the pandemic generated by COVID-19).
Due to the problems that can arise from the transfer of tourist housing licences, especially in the city of Barcelona, we have considered opportune to write this article (which in no way pretends to be a legal opinion on the matter) in order to clarify the doubts that this issue can raise for owners of tourist flats and eventual buyers.
IS IT POSSIBLE FOR THE OWNER OF A TOURIST HOUSING TO SELL THE TOURIST LICENCE?
The Catalan law on tourism establishes that a housing for tourist use is considered to be a housing that is ceded by its owner, directly or indirectly, to third parties, in exchange for an economic consideration for a seasonal stay and in conditions of immediate availability. The Catalan regulation refers expressly to the owner of the housing, thus excluding other possible holders or third parties who have rights over the housing.
While previously it was possible for the holder of the tourist licence and the owner of the dwelling not to coincide, in 2010 the regulation changed, making it compulsory for the ownership of the tourist housing and the licence to be held by the same person. Two consecutive transitional periods were established to regularise those cases in which the owners of the tourist housing and the holders of the tourist licences did not coincide, the last of the transitional periods having ended on 31 December 2013.
Therefore, in those cases in which, once the last of the transitional periods had elapsed, the situation was not regularised (i.e. if the owner of the flat did not “recover” the tourist licence), the tourist licence was potentially revocable by the administration.
The necessary coincidence between the owner of the dwelling and the holder of the tourist licence does not prevent owners of tourist housing from entrusting the management of the activity to a third party, in which case the City Council must be duly informed.
Thus, it is possible to sell the tourist licence, but in order to maintain its validity it will be necessary that the sale of the licence be done together with the sale of the flat, so that the coincidence between the holder of the licence and the owner of the housing for tourist use must be maintained at all times.
For this reason, in cases of transfer of tourist licences, it is very important that the buyer of the licence (and of the dwelling) ensures that the information previously communicated to the City Council by the previous owner is accurate and complete (it is therefore very important to ensure that when the tourist licence was applied for, the City Council received a copy of the certificate of occupancy of the dwelling) and that there is a proper match between the owner of the dwelling and the holder of the tourist licence.
After acquiring the dwelling (and the licence), the new buyer must apply to the City Council for a change of ownership of the licence.
HOW TO CHANGE THE OWNERSHIP OF A TOURIST LICENCE?
As we have seen above, the transfer of the licence is directly related to the transfer of the ownership of the flat, so that the new owner will have to request the change from the City Council within a maximum period of one month from when the transfer actually took place (e.g. article 124 of the standard Ordinance on Municipal Environmental, Safety and Public Health Intervention). The coincidence between the owner of the dwelling and the holder of the licence is so important that, for example in the city of Barcelona, the City Council requests a certificate from the land registry certifying the transfer of the dwelling.
It should also be noted that the inspection, verification, control, revocation and/or expiry of the licence proceedings before the City Council will prevent the transfer of the licence until there is a final decision confirming the licence and/or the validity of the prior notification.
In the city of Barcelona, the procedure can be carried out online, by filling in the form to generate the application form – “Instancia comunicación transmisión HUT – solicitud“, attaching the necessary documentation, and submitting it to the telematic registry of Barcelona City Council.
CAN NEW TOURIST LICENCES LINKED TO TOURIST DWELLINGS BE OBTAINED IN BARCELONA?
In the city of Barcelona, on 1 February 2021, the suspension of prior notifications of the start of activities for the installation and/or extension of the use of Housing for Tourist Use (HUT), as well as the opening, installation or extension of other tourist accommodation activities, was extended. The suspension period will have a maximum duration of two years from the respective publications in the BOPB of the aforementioned suspension agreements.
The suspension also affects the extension of both the number of vacancies and the surface area of the tourist housing currently authorised. In other words, owners of tourist housing cannot increase the number of occupancy places and/or the surface area of the tourist dwellings as stated in the tourist licence, according to what is established in the corresponding certificate of occupancy.
Currently in the city of Barcelona, the “Special Urban Plan for the Regulation of tourist accommodation establishments, youth hostels, collective residences for temporary accommodation and housing for tourist use in the city of Barcelona” (the PEUAT) contains the regulatory framework that governs the management of tourist accommodation in Barcelona.
The PEUAT has divided Barcelona into four specific zones (ZE), basically prohibiting the opening of new establishments in the city centre and encouraging their transfer to other areas, as detailed below.
According To PEUAT, Where Is It Possible To Transfer Or Cancel Tourist Licences Linked To Tourist Housing?
- In ZE-1 – the area with the most tourist licences – the closure of a licence does not give rise to the opening of a new one. However, within ZE-1, only in the Ciutat Vella district, as many registrations as cancellations are allowed for their grouping, complying with the conditions of the Ciutat Vella Use Plan.
- In the ZE-2 zone – which is configured as a maintenance zone – as many registrations are allowed as cancellations in the same ZE-2 zone. In other words, if you own two dwellings in the same ZE-2 zone, and one housing has a tourist licence and the other does not, it is possible to transfer the licence to the other dwelling.
- In the ZE-3 zone – which is configured as a zone of contained growth – as many registrations are allowed as there are cancellations in the same ZE-3 zone. Likewise, there are allowed as many registrations as cancellations in the ZE-1 and ZE-2 zones, with a maximum limit of 387 establishments.
That is to say, in the ZE-3 zone, a registration is allowed if a cancellation in the ZE-1 or ZE-2 zone is accredited.
Registrations in ZE-2 and ZE-3 zones are permitted as long as they comply with the urban planning conditions derived from the general conditions (Articles 9 and 22 PEUAT) and when “the island where it is intended to be located does not exceed the maximum density of 1.48%, counting the tourist housing located there, of the existing housing on the island, or to fill an entire building, except the ground floor, with a maximum of ten tourist housing units and, where appropriate, with non-housing uses“.
- In the ZE-4 zone – no new tourist housing is allowed.
In buildings where the implementation of new tourist housing is foreseen, 100% of the property must apply for and obtain the corresponding authorisation to modify the use of the building. This authorisation excludes the use of any entity as a main or secondary dwelling and must be obtained prior to any authorisation for the opening of the tourist housing to be installed in the building. The Land Registry will have to record the express prohibition for any entity in the building to be used as a main or secondary dwelling.
WHAT IS THE PROTOCOL FOR PROCESSING TOURIST HOUSING IN THESE CASES?
In the case of processing tourist dwelling, it is necessary to accredit the cancellation, obtain the Urban Planning Licence for a building for tourist dwelling and other compatible uses, obtain the Special Plan for Tourist Accommodation Report (PEUAT) and, if it is favourable, notify the registration of the tourist dwelling.
The complexity of the changes in the regulations regarding tourist dwelling, together with the formalities involved, make it necessary to obtain good legal advice on the transfer of licences and tourist dwelling. Our expert lawyers can help you with your particular case by contacting them here.