Alquiler para uso turístico o vacacional

El alquiler se ha convertido en los últimos años, con la crisis económica, en el principal método de acceso a la vivienda. Pero el arrendamiento no sólo puede explotarse en viviendas como residencias habituales. Hay otras formas de explotar un inmueble en este régimen que pueden llegar a ser hasta más atractivas económicamente para los propietarios en grandes ciudades, y situados en lugares de gran atracción: el alquiler temporal y el turístico.

En junio de 2013 se produjo una modificación en la Ley de Arrendamientos Urbanos. Se trata de una modificación que únicamente va a servir para que el arrendador y el arrendatario regulen su relación en base a un contrato regulado por la LAU (contrato de temporada) o en un contrato basado en el Código Civil. Y al fin y al cabo, son dos contratos prácticamente iguales.

Esto quiere decir que el arrendador y el arrendatario no podrán hacer un contrato basado en la LAU porque así lo dice la nueva letra “e”, del artículo 5 la LAU, cuando se den todas y cada una de las siguientes situaciones conjuntamente:

– Cesión temporal.

– Cesión de la totalidad de la vivienda. Por tanto, las cesiones de partes de vivienda (habitaciones) si pueden acogerse al contrato de temporada de la LAU.

– Ha de tratarse de viviendas amuebladas y equipadas para un uso inmediato.

– Que esa vivienda, con todas esas condiciones sea comercializada o promocionada en canales de oferta turística.

– Que exista finalidad lucrativa por parte del arrendador.

– Que esta acción de cesión de vivienda esté sometida a un régimen sectorial (el turístico, en nuestro caso) de la correspondiente Comunidad Autónoma.

Por lo tanto, cuando se den todas estas situaciones no será de aplicación el contrato de temporada de la LAU y únicamente podrá regularse la relación entre el arrendador y el arrendatario en base a las normas del Código Civil en materia de arrendamientos.

Competencia en materia turística

Las comunidades autónomas pueden asumir competencias en materia de turismo. Por lo tanto, las comunidades autónomas que quieran podrán regular la actividad turística y, en particular, los arrendamientos de viviendas de uso turístico o vacacional.

Esto quiere decir que si las Comunidades Autónomas regulan el arrendamiento de estas viviendas, las personas que cedan en arrendamiento esas viviendas deberán cumplir con los requisitos administrativos que en esas normativas autonómicas se establezcan, bajo pena de sanción administrativa. Así, un acto privado (un arrendamiento de vivienda) se convierte en un acto privado que debe cumplir requisitos administrativos.

Y esto no se ve en absoluto inalterado por la modificación que se ha introducido en la letra “e” del artículo 5 LAU, que cómo vemos únicamente afecta al tipo de contrato que va a regular la relación entre las partes.

¿Qué es una vivienda de uso turístico?

Es aquella vivienda cuyo propietario la cede a terceros a cambio de un precio, por un período máximo de 31 días, dos o más veces al año.

¿Quién es el titular de la actividad turística?

El titular de la actividad es el propietario de la vivienda, aunque su comercialización se pueda encargar a un gestor.

¿Qué condiciones tiene que tener mi vivienda para poder ser destinada a uso turístico?

La vivienda debe cederse entera y cumplir las condiciones siguientes:

– Disponer de la cédula de habitabilidad y satisfacer en todo momento las condiciones técnicas y de calidad exigibles a las viviendas en general.

– No puede ser ocupada con más plazas que las indicadas en la cédula.

– Debe estar amueblada y dotada de los aparatos y enseres para su ocupación inmediata, y en perfecto estado de higiene.

Comunidades de vecinos

Ante la inseguridad jurídica, los propietarios pueden blindar su finca reformando los estatutos de la comunidad, para prohibir destinar las viviendas a uso turístico, y trasladándolos al Registro de la Propiedad.

El trámite es sencillo, pero se requiere unanimidad. Las comunidades que no han tomado precauciones como ésta, y se enfrentan a la existencia de viviendas de uso turístico en la finca, tienen abierta la vía de las denuncias ante la Administración o del ejercicio de actuaciones judiciales ante los tribunales.

Fuente: Alvarez Abogados Tenerife

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