FRACTIONAL SYSTEMS: The systems known as fractional ownership are becoming increasingly popular as a combination of a timeshare or rotational enjoyment right and an ownership right, both of them referred to a “fraction” or longer occupation period and a “fraction” or undivided share of ownership in the property to which the rotational occupation relates. Such properties are normally big or top quality apartments, villas or large residences, not always intended for tourist use, albeit with services not necessarily typical of the hotel industry.
In describing the fractional system in the last preceding section, reference was made to the prohibition laid down by Section 23.4 of the Spanish Timehare Act LAT 4/2012 of linking the right in rem of rotational enjoyment to an undivided share of ownership. However, such a precept relates to a “right in rem of rotational enjoyment” and extends to its alternative formulation as a personal leasehold right. Paragraph 8 of the same Section, however, indicates that the remaining contractual modalities of constitution of a right of a personal or an associative nature shall be subject to Title I of this Act (therefore not to Title II, which contains such a prohibition).
Obviously, the specific and “spontaneously” created multi-ownership community does not fall within the scope and, therefore, the prohibition of the aforesaid Section 23.4, although considering the exclusivity of the “lex rei sitae” (law of the place where the property is situated) with regard to in-rem and leasehold rights, the doubt arises as to whether it is possible to constitute such multi-ownership (see “multi-ownership”) not in a spontaneous manner but for commercialisation purposes, whether as fractionals, private residences or branded residences. The essential element in answering this question may be to determine whether the properties are part of a tourist establishment or intended to be used for tourist activities (or should be so intended by Law), not so much because of the town planning status of the properties but because of the service provided which, if it is (or should be) a service specific of a tourist establishment or accommodation unit, may be affected by such a prohibition.
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