90 day maximum stay? - Page 2

I think there is some useful reading here from MSG Legal last year which should be up to date from the legislative changes of the previous years:

It is possible to use Seasonal Leases as an alternative to Holiday Rentals – MSG Legal

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edit:

my reading of this suggests you could potentially have a seasonal let that actual lasts just a week (or even less for example) which at face value doesn't correspond with what most normal people would consider a "seasonal let". Clearly there is an administrative burden on setting such a lease up, but I guess once you're done then you could simply use the same template each time. 

I did find a table somewhere about the differences going back a while when I looked. I've found this and it was from here Larrain Nesbitt Abogados but the article is 3 years old and so may not be current. To save reading the whole thing, I've attached a copy of the table to this post - one thing mentioned on that is a requirement to take a 2 month rental deposit for a seasonal let which if the let is only for two weeks seems bizarre. But I guess that is intended as a means to stop people using it as a way around actually obtaining a tourist licence.

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In my mind, I'd still be seeking to get the tourist licence as that is the safest option for compliance and also allows for advertising etc in the usual holiday website channels etc.

Thanks Kim

My wife and I were wanting to become full time residents. Would that make any difference? 

Thanks

Kevin

Hi Kevin,

If you can meet the financial requirements of Third Country Nationals and your intention is to live in Spain, then absolutely, go for residency.  You do need to bear in mind that, as a TCN, you have to prove the required financials 3 times: for your first application, then for 2 visa renewals until you've lived here for 5 years, at which point you will achieve "Residencia Permanente".

You'll have to declare your worldwide assets in Spain and pay taxes on your income here, but with forward planning, you can organise your affairs to address things like Capital Gains Tax (if you're going to be retaining property in the UK); Inheritance Tax (Spain's Inheritance laws are very different to the UK, so you need a Spanish Will to cover your Spanish property, independent of your UK Will); and you need to be aware of differences such as, tax-free ISAs in the UK aren't tax-free in Spain.

These are what I consider the more significant differences between Spain and the UK, but none of this is insurmountable and organising it now could mitigate tax liabilities in the future.  The important thing is to get advice from a professional for your personal set of circumstances.

Apart from paying a little more income tax in Spain, which I consider negligible when balanced against the quality of life I have in Spain, I have no regrets about taking residency here 👍

Kind regards, 

Kim

CLARITY OVER HOLIDAY AND SEASON LETTING:

Please remember that a Seasonal Let is NOT a rental for a holiday reason.  It is the reason for the stay that determines whether the rental can be classified as seasonal.  Whilst insurance for holiday letting usually states holiday is 30 nights or less this is the insurance policy not the legal definition and extension to that 30 nights may be possible with some companies.  The Schengen rules allow for holidays of up to 90 days.  

 A SEASONAL LET IS NOT FOR EXTENDED HOLIDAYS.  So, examples I have used before, are if a Spanish resident required to live somewhere temporarily while their own home is being repaired then they could have a seasonal let contract, a student staying in the area to study, a business person working for a few weeks in Spain, someone who needs to live somewhere in between having sold their previous home and not completed yet on their next home - all are living/working/studying in Spain but they are NOT ON HOLIDAY.

If a property is being let out for HOLIDAY OR LEISURE USAGE it needs a Tourist License regardless of whether a weekend stay or 90 days stay (and no one can legally stay in Spain longer than 90 days on holiday).

The correct type of contract must be used.  Someone visiting for a few weeks who is not coming to Spain for work or business is coming for LEISURE purposes - to get away from the winter cold or to spend time with family or to recoup from illness or to play golf etc - they should be covered by a a holiday let contract and the property needs a Tourist License.  

If a person is relocating they will need a residential contract, not a holiday let contract.

Seasonal letting is NOT a way around the Tourist License, it is an alternative form of letting and requires a different legal contract and a different type of insurance.  If you try and cheat the system by claiming you are doing Seasonal Letting while you are really doing Holiday Letting then expect to be heavily fined.

Thanks Dave - that is helpful and a useful re-affirmation of the point I was trying to make albeit probably less firmly as the seasonal letting is not an area I have any experience of. Your examples are in line with those provided by MSH.

I was reading it as though you could construct something around "seasonal letting" but that would not be within the spirit of the legislation albeit that you maybe could have a paper trail to explain it.

It would be disappointing if "professional" advisers are offering solutions that are potentially illegal as a stop gap solutions to other problems.

Many thanks for the clarification, Bev.  To ensure that I do not appear to be encouraging illegal behaviour by landlords, which was not my intention, I have deleted my post.

Kind regards, 

Kim

I just don't want people getting fined when they thought they were doing things legally.  EU rules saying a holiday can't be longer than 90 days gives clarification that a stay of longer than 90 days requires the person to be actively seeking the right to live in the Spain so a holiday contract would be inappropriate.    

This is the law that covers the definition of a holiday let https://www.boe.es/buscar/act.php?id=BOE-A-1994-26003&tn=2  section 5.e, which I translate as "The temporary assignment of use of the entirety of a furnished and equipped home in conditions of immediate use, marketed or promoted in tourist offer channels or by any other form of commercialization or promotion, and carried out for profit, when it is subject to a specific regime, derived from its tourism sector regulations"

Which together with the current Valencian official guide on holiday lets https://aaffvalencia.es/wp-content/uploads/2019/04/GU%C3%8DA-DE-LA-VIVIENDA-TUR%C3%8DSTICA-PARA-PROPIETARIOS.pdf?fbclid=IwAR1UJoB3LRDxcAUPgnh8FeAHugk_t1XCCuaTTI9L49E7b0Ca2gbbqcce1dU

would mean it is the PURPOSE of the let that is the most important factor in deciding if a Tourist License is required, together with how the property is marketed.  The rental contract used would need to stipulate that use.  The type of contract would determine the type of insurance required.  

I know you would never do that Kimmy.  You posts are always informative.  It is such a difficult time for many second home owners with no income that many will need to find a way to earn an income from their properties.  Hopefully they can do so without falling foul of Spanish legislation.  Everything so hard for so many at the moment sadly.

Kim,

The whole seasonal letting point was definitely out of my comfort zone in terms of experience so I was trying to be deliberately slightly hesitant as to exactly what the requirements are and how feasible it could be as a possible option in a certain range of circumstances. 

The one "good" thing about seasonal lets based on my reading over the last couple of days as a consequence of this thread, is that it appears to be dealt with by national legislation rather than regional so at least you don't get the added complexity of regional differences!!

NB - you might have realised that given the volume of links I ended up posting!!!!

I think it's also one of these elements that is unique to Spain. Back in the UK, a property we own was rented by a couple but the rent was paid by an insurance company as the couple who moved in own house had suffered significant flood damage and was no longer habitable while repairs were carried out. It was all handled by our letting agent but it was simply put on a standard AST. I'm not sure if the idea of a "seasonal let" in the UK is an actual thing.