New regulation of touristic accommodation in 262 Catalan municipalities: Decree Law 3/2023, of 7 November

Decree Law 3/2023, of 7 November, on urgent measures on the urban planning regime for touristic short stay furnished accommodation was published in the Official Journal of the Generalitat de Catalunya on Wednesday 8th November.

This Decree-Law, which came into force the day after its publication, represents a very important change in the regulation of dwellings for touristic use (HUTs) in Catalonia, and in the duration of the permit for this purpose.

1. Prior authorisation in municipalities with problems of access to housing and risk of disrupting urban equilibrium

The Decree-Law establishes a new intervention regime which consists of a prior authorisation for touristic short-stay furnished accommodation use of the dwelling in the municipalities defined by the Decree-Law itself that fit the following definitions:

– Municipalities with access to housing problems are those where there are accredited housing needs, and which meet at least one of the following requirements:

1. a) the average burden of the cost of the rent or mortgage on the personal or household budget, plus basic expenses, and supplies, exceeds thirty percent of the median income or median household income,
2. b) that in the five years prior to the entry into force of this Decree-Law, the rental or purchase price of the dwelling has experienced a cumulative growth rate at least three percentage points higher than the cumulative growth rate of the consumer price index in Catalonia.

– Municipalities at risk of disrupting the balance of the urban environment due to a high concentration of dwellings for touristic short-stay furnished accommodation use: those with a ratio of 5 or more dwellings for touristic short-stay furnished accommodation use per 100 inhabitants at the time of the adoption of the Decree-Law.

This definition comprise the 262 municipalities included in the Annex to the Decree-Law. The list of affected municipalities in the Annex is valid for five years from the entry into force of the regulation. The list of municipalities must be reviewed every five years and will have to be determined, with a prior hearing of the municipalities affected, by means of an order of the head of the department responsible for town planning.

The rest of the municipalities are not affected by the new regulation and the prior notification system will remain in force in them, by application of Law 18/2020, 28 December, on the facilitation of economic activity.

2. Limited duration of touristic short stay furnished accommodation authorisation (HUTs)

The authorisation for a dwelling for touristic short stay furnished accommodation use (HUTs) has a duration of 5 years, which can be extended for periods of the same duration, provided that the town planning of the municipality expressly permits it. If this is not the case, the dwelling for touristic short stay furnished accommodation use (HUTs) activity will have to cease.

3. Modification of the urban planning regime: express provision for urban planning and cap of 10 HUTs per 100 inhabitants

In order to implement the prior planning permission regime, the Decree-Law amends article 187 of the revised text of the Urban Planning Law (TRLU), approved by Legislative Decree 1/2010, of 3 August. The new redaction of this precept determines that in municipalities where this new prior authorisation regime is applicable, the use of HUT is only compatible with the use of housing if it is expressly permitted by urban planning. To this end, the planning will have to justify the sufficiency of qualified land for the use of housing intended for the habitual and permanent residence of the resident population, considering the tenancy regime of the dwellings in the municipality; the fact of not jeopardising the protection of the urban environment; and the principle of sustainable urban development of the area to be developed. In no case may more authorisations be granted than those resulting from applying a maximum of 10 dwellings for touristic short stay furnished accommodation use per 100 inhabitants. It is also established that authorisations and their extensions must be granted under the criteria of publicity, objectivity, impartiality, transparency, and competitive tendering.

Therefore, HUT authorisation cannot be granted until the municipalities included in the Annex update their urban planning and the latter provides, in accordance with the aforementioned new criteria of article 187 of the TRLU, that HUT use is compatible with residential use.

4. Transitional arrangements

The transitional regime allows for existing permits for HUTs located in the affected municipalities to remain valid for a period of 5 years from the entry into force of the Decree-Law. Once this period has expired, the bearer will have to have obtained an authorisation for the activity in accordance with the municipality’s planning in order to continue exercising the HUT activity. Otherwise, they will have to cease the activity.

If the owners of the dwellings for touristic short-stay furnished accommodation use located in the affected municipalities can prove that the transitional regime does not compensate them for the loss of the former HUT permit, they can apply to the their Town Hall for a single extension of the transitional regime for up to five more years, which must be requested after four years have elapsed since the entry into force of the Decree-Law and before the end of the transitional period.

The Decree-Law establishes that the transitional regime it provides for has the character of compensation for the eventual loss of the enabling title of the existing HUTs that may result from the new regulation.

The transitional regime described above also applies to municipalities which, although not included in the Annex to the Decree-Law, are included in the list of municipalities in accordance with the order to be approved. The deadlines will be counted from the entry into force of the order.

Consequently, the HUT permits currently in force in the municipalities affected by the new regime will expire when the transitional period of five years and any extension that may be granted expire. Therefore, having a HUT permit at present is by no means a guarantee of obtaining a touristic short stay furnished accommodation use authorisation under the new regime, even in municipalities where the maximum ratio of 10 HUTs per 100 inhabitants is not exceeded. Indeed, as mentioned above, according to the new wording of article 187 of the TRLU, local councils will have to grant authorisation in accordance with the criteria of publicity, objectivity, impartiality, transparency and competitive tendering.

The Decree Law can be consulted at the following link: https://portaljuridic.gencat.cat/eli/es-ct/dl/2023/11/07/3.