Bellvehi Advocats

In the present article, written from a legal focus, we consider if it is really advisable and opportune, at this moment, the legal regulation of the Condohotels and related figures.

Normally, reality goes before legality and when legality wanted to move forward reality, most of the time it became a corset that stops and distort the economic activity and due to it, it must be revised, badly many times and too late.

Therefore, in relation to Condohotels matter and related figures, we situated in a dilemma that make us consider what would stop the proliferation of new projects of such nature, if the luck of specific regulation or a detailed regulation of the matter.

It is true that Condohotels are already invented and it is not a new product of world/global level in the tourist sector, but also it is true that under “conodhotels” domination you can find different legal figures and also exist many others that could be valid, depending the election of one or the other according to the circumstances and the context where they should develop.

In this point, I can not resist to go to the origin or root of the legal matter that we are considerating, known as “the beginning of the autonomy will” and expressly regulated in the articles 1.254 and 1.255 of the Civil Code, that say literal and respectively the following:

   Art. 1.254: “The contract exists since one or several people consent to be obliged, respect one and others to give a thing or provide some service”

   Art. 1.255: “The contractors can establish the agreement, clauses and convenient conditions, without being contraries to the laws, to the moral and to the public order”.

Condohotels and related figures matter is legally, in great measure, in the civil and commercial trading sphere; being structured and defined through contracts whose nature can be diverse.

In strict legal technique, the contractual sphere of the condohotels and related figures it would not be correct to talk about legal vacuum, due to the lack of specific regulation over some contracts does not implies that it does not exist a general regulation to which they should submit and that gives them legal coverage. We can speak about atypical contracts but not illegal.

Furthermore, in reality, the main legal figures that can give play in the matter that interest us, are mostly expressly regulated in the Spanish legal system, emphasizing the following:

a) The pure condominium: The expression “Condohotels” has its origin in “condominium” that it means “community estate”, regulated in the articles: 392, following and in concordance with the Civil Code. Thus, we see that: “there is a community estate when the property of one thing or the property of the right belongs indivisible to various people”. The Civil Code establish in detail the legal system whom the condominium should be ruled by in case of lack of contracts between the co-owners.

b) Property in a Condominium “Propiedad horizontal”: It is convenient take to bear in mind that the Spanish Legal System foresees a special system of community estate, regulated in the Law 49/1960, of July the 21st, about Property in a condominium.
The speciality is given because we are not sharing quotas over a property, but in a distribution of a property between zones and private parts and other common. Here we do not speak about co-owners but about joint-owners.

c) Time Sharing “Aprovechamiento por turnos de bienes inmuebles”: Other Special Legal System of the community estate we find it in the law 42/1998, of December the 15th, about “Derechos de aprovechamiento por turnos de bienes inmuebles”, called “time sharing” or also “vacational o residential clubs”.

d) Usufruct: On the other hand, we have the figure of the usufruct, that also can play a game in the matter analysed, regulated in the articles 467, following and in concordance to the Civil Code, consistent in the right to enjoy the other assets. The usufruct can be constituted by means of a contract with extensive faculties of the parts to regulate it.

e) Rent: The rent contract is also a typical contract regulated by the law 29/1984, of December the 24th, of urban rents, existing specific regulations that develop this matter, for example in matter of tourist appartments and tourist vocational dwellings (RD 2877/1982, October 15th).

The problem, from my point of view, is not the lack of specific regulation of the condohotels or related figures in the Spanish Legal System, but that the lack of regulation, that at the moment I see it as something positive. The problem is that there are some regulations, mainly civil and urban development, that can make that such contract could situated at the margin of the law or in zones where the ambiguity and the doubt of the interpretation lead us to stop the imagination, activity, and so, the economy.

¡Delete those barriers and that is enough, for the moment! When we will have more experience and we have seen how the tourist operators have solved their projects imaginatively and agreed to their necessities, fighting with the notaries and registers and with the different administrations, we must regulate over what we have learnt and minimum, setting only one framework of action, but not being interventionist in this matter that as more it can give from itself is by putting the minimum barriers as possible.

The regulation of this matter at this moment, would take the pressure to the legislator not only from the tourist sector, but also and even more, from the property and financial sector that would see in the condohotels a tempting product, which could produce that the final regulation it would not be precisely thought for searching the better development of the hotel tourist activity.

Besides, we have to bear in mind that some Autonomous Spanish Communities, have competition in civil law and all of them in tourism and urbanism, depending this last matter, in great measure, of the city hall, what makes the situation more complex. It is not rare, as we are used to, that what it can not be valid in a determined Spanish locality, it can be valid in another one, and so it is to happen in condohotels and related figures matter.

In Fact, we have to consider the previous existence of condohotels projects in Spain and some of them they are already marketing, what is an evident proof that some businessman have already found legal formulas to obtain it.

Centred the matter, in plain exercise of the autonomy of the will, legally recognised, I propose and suggest that we can let our hair down and start to imagine, design and invent new tourist products that can be included under the denomination of condohotels; without limitating ourselves to copy what have been done at the moment in the USA, in Caribean States, in France or other places.

I consider that in this matter, as in many others, the person that is more imaginative and brave, counting always with the best technical advice and knowing well the circumstances and the surrounding context, will succeed for sure.

It is curious, but if we think in different possibilities and possible alternatives, they appear with different shapes and characteristics imaginating them from the point of view of the tourist operator, the property salesman or the financial operator and is really that the condohotel can be a tourist product, property or financial, according to how it is structured or maybe, is better to say that they are three products in one.

Ready to imagine, the condominium formula, with all his variants and modalities, can be very valid and should not find many barriers, due to the property of the real state belongs to the co-owners and they regulated their contractual relation with a hotel chain that will exploit the property and can freely deal what they want, book days to use rooms, enjoying hotel services, participate in the benefits or charging a rent.

The formula of the horizontal division, can lead more problems, above all because of the difficulties that the notaries and registers will set up to consider “finca registral” inscribable to one room and for the other administrative, financial and bureaucratic inconvenient that can suppose. In this point we could talk about legal vacuum and it would be good that this extreme can be regulated. Nevertheless, we can look for valid alternatives and solutions around this figure.

Being more imaginative, and entering in the commercial and corporate sphere, we could think that the real state can be property of the commercial corporation where all the owners or participants were not directly owners of the property but shareholders or partners of the property corporate, that is the one that would hired with the hotel chain. It seems more easy, really?. Even it could be the same corporate property the one that exploited the hotel with a contractual and/ or statutory system between shareholders, with different rights and obligations between them in function to the industrial or capitalist partner. Another different matter is, if this formula should also be called “condohotel”, nevertheless, I think that this is the less important.

Following the designing path, if we focus on the financial sphere, Why do not we search formulas of venture capital, companies or funds of venture capital that take positions in the companies capital that acquire those properties to yielding its hotel exploiting, with some special rights for the regulars of those companies or funds?.

Or if we focus in the property sector; Why do not we present it as another property product , in whose the salesman had already has finalized a contract with a hotel chain and the future co-owners, joint-owners, shareholders or participants already acquired the property in a previous determined system to whom which they subrogate.

All such formulas have and must have a common element, from my point of view, that is the real investment opportunity of the money earned of the co-owners, joint-owners, shareholders o participants. There, it is the secret of the success.

Jordi Bellvehí
jordi.bellvehi@bellvehi.com
Soci.

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