ISSN 2184-8793 ISSNe 2975-9056 buildings. This decision was declared illegal by the High Court of Justice of the Balearic Islands, by decision of September, 10, 2021 (Proc. 00486/2021). Ley 8/2012, of 19 July, Ley del turismo de las Illes Balears, as amended by Ley 3/2022, of 15 June, reads: if the constitutive title or the statutes do not prevent the tourist marketing of local accommodation, it is necessary, in order to carry out tourist marketing, and only for this purpose, a condominium agreement with a positive vote of the majority of the owners, for this marketing, which must be entered in the land register and may be revoked by an equal majority. These rules follow the trend in Spanish jurisprudence on this matter, which initially held that the use of the term "dwelling" in the constitutive deed of the horizontal property was enough to interpret that this only made the purposes of residence, home or dwelling admissible, contradicting tourism purposes, being only compatible with the rental of a more durable dwelling. This jurisprudential position had, however, as from 2008, an evolution, followed by the doctrine, considering that for the condominium to prohibit the tourism use of fractions, it is necessary the constitutive title or the statutes to contain a clear and express prohibition, which will affect third party purchasers when entered in the land register19 . This majority position adopted in Spain is, in our opinion, more consonant with the sense we understand to guide the nature of the local accommodation activity. In fact, it seems to us that this was the intention of the legislator drafting the RJAL, both the creation of a specific instrument to deter abuses which jeopardize the normal use of the property and the requirement of authorisation of the condominium owners for the installation and operation of hostels. Going further, other questions can be raised: Can the condominium which at a given moment unanimously authorized the change of use of the property units in a horizontal property building from 'housing' to 'housing and local accommodation', go back on its decision and decide to prohibit the use of the units for accommodation? Or can the condominium assembly authorize, with a majority of the votes, the local accommodation operation in a fraction and not change the constitutive title? And in case of a positive answer, can that decision be revoked, and prohibit the accommodation operation, under the reason that the constitutive title is the sole source of the destination of the unit? 19 Mansilla, 2018, 332.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==