lesson 4 partial tourism contracts condensed super

without lodging or time share

the assignment of dwellings for tourist use

a service contract where one party the host offers short term accommodation to the guest for a price

• it is not a traditional lease

  • instead it is a tourist accommodation service regulated by public tourism/adinstrative law not just private law

• normal leases under lau give tenant protection

  • whereas tourist accommodation falls outside the lau and is governed by regional tourism rules

  • has less tenant style protection and more regulatory control

• tourist accommodation sits between private contract law (agreement between 2 parties) and public regulatory law (tourism rules)

  • this leads to strong administrative control and reduced contractual freedom

• regulation aims to protect tourists and ensure quality standards while preventing overtoruism and housing shortages

tourist dwelling vs lease

temporary stay vs permanent or habitual residence

service based vs property based

regulated by tourism law vs regulated by lau

includes additional service vs pure use of property

right of temporary use vs real property right

definition under art 3.1 decree 2016

tourist dwellings are properties that are ready+building+paid+andalucia+regular

• equipped and suitable for immediate use= fully furnished and ready to live in instantly

  • includes basic utilities (water electricity) and necessary furniture and appliances

  • not empty properties or long term residential lets

• located in buildings where accommodation is offered= situatied in residential buildings or complexes

  • may be indidual flats or entire houses

• provided for consideration= must involve payement

  • payement confirms it is an commercial activity

  • does not include free stays eg staying with friends

• within andalucia= physically location in the autonomous community

  • subject to regional not national regulation

• on a habitual basis= activity must be regular/recurring

  • disintguishes from one off or occasional rentals

hierarchy of legal sources

decree 28/2016 core regulation

• the main law governing tourist dwellings in andalucia

• covers:

  • obligations of owners

  • administrative control

  • requirements (standards and registration)

law 13/2011 on tourism in andalucia

• broader framework of law working alongside decree

• covers:

  • tourist activity in general

  • rights and obligations of providers

Lau= urban leases act

• art 5.e excludes tourist accommodation from lease law if it is subject to specific tourist regulation

  • less than 2 months consecutive stays are excluded

• this is what legally removes tourist rentals from tenancy protection

law 49/1960 LPH condominium law

• governs communities of property owners

  • allows communities to restrict or prohibit tourist rentals

  • allows communities to impose conditions

  • creates tension between an owners right to exploit property vs communities right to regulate use

• law on sustainable tourism pending

  • future legislation

  • likely aims to control mass tourism and promote sustainability

  • emerging regulatory trend

summary

definition under art 3.1 decree 28/2016

• paid

• habitual

• ready to use accommodation

• in Andalucía

not a lease art 5.e lau

• governed by tourism law instead

key laws

• decree= main rules regulating tourism dwellings in Andalusia

• law 13/2011= tourism framework

• lau= excludes tourist uses from urban leases

• LPH condominium law= community control

• sustainable tourism law= future reform

article 17 mph community control

• the community of owners (property owners in a building) have the legal power to

  • approve= allow tourist rental

  • limit= restrict how they operate

  • conditions= impose requirements ie rules and fees

  • prohibit= completely ban tourist rentals

• this shows a conflict of rights

  • indium owners right to use/exploit property

  • community= right to regulate collective living

• courts generally allow community control to protect

  • coexistence

  • noise levels

  • security

  • building integrity

• even if tourism law allows rentals LPH may still restrict them

voting requirements

follows a strict majority rule were both must be met simultaneously

• 3/5 of all property owners (numerical majority)

• and 3/5 of participation quotas/ownershio shares (economic majority)

• this prevents a few large owners dominating and many small owners overriding major shareholders

additional measures

• increase common expenses= tourist use properties can be required to pay more towards communal costs

  • greater wear and tear

  • more use of shared areas ie lifts and entrences

• establish special expense quotas= create a specific financial rules for these properties

  • higher maintenance contributions

  • special cleaning costs

• however increases cannot exceed 20%

  • protects owners from excessive financial burdens

retroactive affect

• any community decision only applies going forward

• therefore existing tourist rentals cannot be banned or restricted retrospectively

• this protects legal certainty and legitimate expectations of property owners

  • if owner a already runs a tourist rental and the community later bans them the ban does not apply to owner a only affects future cases

summary

• art 17 LPH allows communities to

  • approve

  • limit

  • condition

  • prohibit tourist rentals

• voting requires a strict majority

  • 3/5 owners

  • 3/5 quotas/shares

• financial measures

  • increased communal costs and special quotas

  • up to limit of 20%

• no retroactive effect

package travel arrangements

a trip is not a package if

• duration is less than 24 hours ie no overnight stay

• it is occasional and non profit ie friend planning a trip

• booked under a general business travel arrangement

requirements

to be a package it must combine at least 2 types of travel services

• passanger transport= plane train etc

• accomodation= hotel villa

• vehicle rental service

• other tourist services ie guided tours

EXCEPTION= it is not a package if you only have 1 main service 1-3 + an extra tourist service that is

• less than 25% of the total price

• + not essential/ advertised as a key feature of the package

• +they are added after the main booking starts

  • needs all not to be true

how services must be combined

a package can be formed in 2 ways

• a single trader= one company provides all services together

• separate contracts but are clearly linked as a package

  • one of these must apply

    • 1 single point of sale before you pay

    • sold as a total/lump sum price

    • marketed as a package

    • allowed to combine after booking

    • linked online booking system

right to information art 153 trlgdcu and annex 2

pre contractual phase= before booking the traveller must get clear easy to understand information about the trip

• content requirement art 153 and annex 2 forms

  • price, itenary, transport, accommodation, key features, cancellation rules

• this information given becomes part of the contract

• contract and later terms must match the pre contract info

• this is essential so the traveller can give valid consent to buy

right to trasnfer booking art 157 trlgdcu

traveller has the right to transfer their booking to someone else

• transferee must meet all the trips conditions= age limits, documents, health requirements

• transferee must be suitable to replace the original traveler= capable of using the services booked

• its a special right in travel law not a general contract assignment under art 1205 cc

right to withdraw art 160 tlgdcu

the traveller can withdraw/cancel the booking before the trip starts

• must notify the organiser or retailer of the cancellation

• traveller is usually entitled to a refund of amounts already paid

• organiser may charge a penalty free unless specific exceptions apply

• not showing up on the day of the trip does not count as lawful withdrawal

• if the contract was made outside business premises eg online or by phone the traveller gets extra protection under the law

travellers main obligations

• payement of price= the travellers main duty is to pay the agreed price of the trip

• breach of obligations= if the traveller fails to pay the rules from the general civil code on obligations applies

  • ie late payement consequences, interest, other legal remedies

organisers rights: cancellation before the trip art 160 trlgscu

• when cancellation is not the travellers fault the traveller is entitled to

  • a full refund of any payments already made

  • compensation for losses/inconvenience caused

• EXCEPTION= no compensation is needed if cancellation was due to

  • force majeure= unforeseeable events like natural disasters wars

  • insufficient participants= not enough booking to run the trip

unilateral modification art 158 trlgdcu

the organiser cannot change the contract on their own after it is concluded

• EXCEPTION= changes are allowed only if explicitly agreed in the contract ie a clause allowing schedule changes

  • for valid modification any change must meet general legal conditions of contract validity= clear terms, consent, legality

  • the traveller can accept the change or terminate the contract if they don’t agree

• price increases are strictly regulated and must follow specific rules- they cannot be arbitrary

non performance or defective performance

• both the organiser and retailer are liable for services they agreed to provide

• liability applies for

  • services not provided at all

  • services that are defective= poor quality, missing, wrong

  • this ensures travellers receive what they paid for

• traveller can claim against the organiser the retailer or both

  • joint liability means the traveller can seek full remedy from either one or both which makes it easier to enforce their rights

lack of conformity

= when services don’t match the contract ie hotel not as described, tour missing elements

• travellers can:

  • refund full or partial

  • repair or replacement od the service

  • price reduction

• this ensures travellers get what they were promised and organisors/ retailers are held accountable

force majeure situations

unforeseeable unavoidable external events ie natural disasters, wars

• if occurred before the trip the organiser can cancel without penalty

• if occurs during the trip it is treated as a lack of conformity so the organiser may be party excused but still have a duty to adress issues if possible

• this balances traveller protection with recognition that some events are beyond control

insolvency protection art 164 trlgdcu

organisers and retailers must provide financial protection/guarantees in case of bankruptcy

• this covers refunds for travellers who already paid

• repatriation if the traveller is abroad when insolvency happens

• this prevents travellers losing money or being stranded abroad