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Is a seasonal rental contract OK for holiday rentals?
By Armin Gutschick & Anja Sämann-Gutschick
Apartments are generally not allowed to be used for holiday rentals in Ibiza - a restriction that some landlords deliberately ignore. Some people claim that this ban on holiday lets can be avoided by using a seasonal rental agreement with a term of more than one month. Is this statement true, and what exactly are the differences between a seasonal rental and a holiday rental? First of all, each one is governed by different legal regulations: Holiday rentals in Ibiza are regulated by the Balearic Tourism Act of 2012, while the definition of a seasonal rental is somewhat hidden within Art. 3 and 29 ff. of the Spanish Rental Law LAU (Ley de Arrendamientos Urbanos).
The second paragraph of Art. 3 LAU extends the scope of the law to cases in which residential properties are rented out seasonally "whether for the summer or any other time of the year.” According to Art. 29 ff. LAU, this is a letting that is not for use as a main residence ("arrendamiento por uso distinto de vivienda habitual"). It appears that seasonal letting is regulated by this law, which means that in principle the letting of apartments in the holiday season cannot be prohibited.
However, paragraph e) of Art. 5 of the LAU provides for a significant restriction of this aspect of the law. It says that a furnished apartment which is provided for temporary use, and offered through tourist channels, is excluded from the application of the LAU if it is subject to a legal regulation of the local government ("sometida a un regimen específico, derivado de su normativa sectorial").
The legislature has thus clarified that not every type of letting of a furnished apartment is subject to the rights given by the LAU. For instance, here on the Balearic Islands there is a legal regulation about this in the aforementioned Tourism Act, that takes precedence over the LAU. In addition, the minimum duration of a seasonal letting is not specified by the LAU. Yet it seems clear that calling a short rental of a week or a few days “seasonal” would definitely be disallowed as too short.
However, the most important thing is that the contracting parties indicate the reason and purpose of the contract in a seasonal rental agreement. The seasonal rental agreement should make it clear that this is the tenant's secondary residence and the tenant's main residence should be stated as part of the personal details. With reference to Art. 3 and 29 ff. LAU, the intended use of the apartment must be described clearly and comprehensibly. For example, you can include in the contract that the apartment is only being rented for one season due to a change of employment. In addition, it is not advisable to offer the apartment via platforms such as Airbnb. This could be interpreted by the authorities as a clear indication that the tourism law of the Balearic Islands applies, and that this is actually a holiday rental.
In case of any doubts about whether the authorities consider this to be a legitimate rental, the burden of proof always lies with the landlord (owner). They will have to prove that this is a genuine seasonal rental contract, and not actually a long-term rental contract of at least 5 years. They will also have to prove that it is not a short-term holiday rental, which can result in drastic fines if discovered by the island council (Consell Insular), as the owner would not have a holiday rental licence.
In summary, it can be said that a well-drafted seasonal rental agreement can be an alternative to a long-term rental agreement, but for the reasons mentioned above, it is not a viable alternative for a holiday rental.