LPH art. 17.12 — Owners' community surcharge for VUTs: no retroactive effect

Article 17.12 of Act 49/1960 on Horizontal Property (LPH), introduced by Royal Decree-law 7/2019 of 1 March, grants owners' communities the power to pass specific resolutions regarding Tourist Use Properties (VUT) located in the building.

What the community may resolve

With the affirmative vote of three-fifths of the total number of owners and participation shares, the community may:

• Prohibit, restrict or condition tourist rental activity in the building.
• Impose a surcharge of up to 20% of common expenses on properties used for tourist rentals, due to their more intensive use of common areas.

Explicit limit: no retroactive effect

The same article 17.12 LPH includes a fundamental protection clause:

"Estos acuerdos no tendrán efectos retroactivos." (These resolutions shall have no retroactive effect.)

This means that community resolutions cannot affect owners who were already lawfully operating tourist rental activity at the time the resolution was passed, nor can they apply to periods prior to the resolution.

Case law: Provincial Courts

Several court rulings have applied and consolidated this principle:

• SAP MA 902/2025 (Audiencia Provincial de Málaga, Fifth Section, 4 March 2025, Appeal 243/2022), concerning the community "Colinas del Bajondillo Fase 1", directly addressed whether the 20% surcharge could be applied to all tourist properties, including those already registered in the Tourism Register before the resolution was passed. The court recognised that the surcharge cannot be applied to properties already registered as tourist accommodation before the community resolution.
• SAP SE 3163/2025 (Audiencia Provincial de Sevilla, 29 October 2025) declared void a resolution increasing fees for a tourist apartment that had been operating since 2016, whose community had approved the surcharge in 2021 and 2022. The court concluded that the 2019 reform applies only to properties dedicated to tourist rental ex novo after its entry into force, that is, to those who begin the activity after the reform.
• In both cases, the courts ordered the community to repay the amounts collected in excess.

Case law situation: no Supreme Court doctrine yet

As of July 2026, the Supreme Court has not established specific doctrine on the temporal scope of the surcharge under article 17.12 LPH. The October 2024 Supreme Court rulings clarified that "restriction" may include "prohibition", but did not expressly address the issue of fee increases. The result is inconsistent case law across Provincial Courts: some have rejected broad retroactive application, but not all have ruled in the same direction. Each case must be analysed individually, paying close attention to the date the tourist activity started and the exact wording of the community resolution.

Practical summary for VUT owners

• If the community passes a surcharge resolution after the owner obtained the VUT licence and was already operating lawfully, the surcharge cannot be applied retroactively or to periods before the resolution.
• If the owner begins tourist activity after the community resolution, the surcharge applies from the start of the activity.
• Prohibition resolutions passed before 3 April 2025 do not affect VUTs already registered on that date (see Decree 31/2024).
• If the surcharge is applied unlawfully, the owner may challenge the resolution in court and claim repayment of the amounts collected in excess.
• Recommendation: given the absence of unified Supreme Court doctrine, it is advisable to consult a specialist lawyer before taking decisions based on this case law criterion.