The Autonomous Community of Madrid passes Decree 192023 on the organisation of hotel establishments

On 15 March, the Governing Council of the Community of Madrid passed Decree 19/2023 on the organisation of hotel establishments ("Decree 19/2023") and repealing former Decree 159/2003 of 10 July 2003 ("Decree 159/2003").

The new regulation was published in the Official Gazette of the Community of Madrid on Wednesday 22 March 2023 and entered into force the following day. However, it grants to the existing hotel establishments a period of three years to adapt to the new rules.

1. PURPOSE OF THE NEW REGULATION

The main purpose of Decree 19/2023 is to update the implementation regime for hotel establishments in Madrid in accordance with Law 1/1999 of 12 March on the organisation of tourism in the Autonomous Community of Madrid ("Law 1/1999") which stablishes for a responsible statement system. This simplifies the formalities and speeds up the start-up of hotel activity.

Decree 19/2023 also eases the minimum requirements for each type of establishment, although in some specific issues it includes new obligations for operators (e.g., the increased ratio of accessible rooms and the general requirement to provide free Wi-Fi).

Finally, the new regulation includes other minor amendments to bring it into line with both the existing legal context and the current practice of the hotel business.

The following is a detailed analysis of the new features introduced by Decree 19/2023, leaving aside those aspects that are unchanged with respect to Decree 159/2003 (such as the standardised plate models, which are maintained, or the system of infringements and penalties, which continues to refer to Law 1/1999).

2. NEW REGIME FOR STARTING UP A BUSINESS: THE RESPONSIBLE STATEMENT

As mentioned above, Law 1/1999 already provided, by virtue of the amendment introduced by Law 8/2009 of 21 December on liberalisation measures and support for businesses in Madrid, for the implementation of new hotel establishments by means of a responsible statement, replacing the former need to obtain express prior authorisation.

The responsible statement must include:

• The business identification data.
• The identification data of the hotel establishment itself.
• The classification of the establishment and, where appropriate, category.
• Written confirmation that the requirements demanded to carry out the activity of hotel tourist accommodation in the proposed terms are met, including the documentation accrediting compliance with these requirements is available at the request of the Administration and a commitment to comply with these requirements until cessation of the activity.

The correct filing of the responsible statement will allow the immediate exercise of the activity, subject only to obtaining or complying with the rest of the applicable regulations (for example, obtaining the corresponding municipal opening or functioning licence or any other authorisation or favourable report that may be required). In addition, the filing of the responsible statement will imply the immediate classification and, where appropriate, categorisation of the establishment in accordance with the information provided, without prejudice to the Administration's right to review said classification and, if applicable, proceed to reclassification.

In the event of any change in the data included in the initial statement, a new responsible statement must be filed. A responsible statement must also be filed for the installation of extra beds and in the event  the activity is ceased or change of ownership.

Failure to file the mandatory responsible statement, as well as the existence of inaccuracies, falsities, or omissions of an essential nature in the data provided, will determine the impossibility of carrying out the activity. In these cases, the Directorate General for Tourism of the Autonomous Community of Madrid will issue a decision, after hearing the interested party, which will render the responsible statement ineffective and may even require the legal situation to be restored.

The rest of the former procedural aspects are maintained with some minor changes:

• It is still possible to request a prior non-binding report from the Directorate General for Tourism on the tourist classification that could correspond to the establishment. It is now added that the Directorate may request additional documentation from the developer to assess the situation and that failure to reply by the Directorate within three months does not imply acceptance of the criteria set out in the application.
• The possibility for the Directorate General for Tourism to grant waivers of requirements, especially for establishments in protected buildings, is also maintained, although applications are now required to be made in accordance with a standard form.
• Once the responsible statement of commencement of activity has been filed, registration in the Register of Tourism Companies managed by the Directorate General for Tourism becomes voluntary, without prejudice to the Directorate General for Tourism being able to include the hotel establishment in a list for statistical, marketing and record-keeping purposes.
• The former section of Decree 159/2023 requiring compliance with the principle of unity of exploitation disappears in Decree 19/2023, although it still included in Law 1/1999.

3. DEFINITIONS AND EXCLUSIONS

The definition of the different establishments, as well as their potential classification, remains unchanged. The only real novelty is that hostels will require a minimum number of bed places of 21 (previously, only 20 bed places were required).

The exclusions from the scope of application that already existed in Decree 159/2003 (seasonal rentals, stable guest tenancy, partial subletting, shelters, residences for the elderly and students, accommodation with less than four beds, tourist flats, rural tourism establishments and campsites) are maintained, but two new exclusions are added (accommodations with multiple bunks in the same room called hosterías and dwellings for tourist use).

4. GENERAL EASING OF REQUIREMENTS

Decree 19/2023 has updated the requirements for each of the different type of establishments to the current accommodation needs. Among other issues, free Wi-Fi service is now required in all rooms (while previously it was only required in five and four-star hotels).

A detailed analysis of how the requirements for each category of establishment have changed with Decree 19/2023 is included in this Annex.

5. PROVISIONS COMMON TO ALL ESTABLISHMENTS

5.1 Accessible rooms

Decree 19/2023 increases the required ratio of rooms adapted for people with disabilities:

• In establishments with rooms between 5 and 50 there must be 1 adapted room (previously there was only an obligation to have adapted rooms for establishments with 20 or more rooms).
• In establishments with rooms between 51 and 100 there must be 2 adapted rooms (this proportion remains unchanged).
• In establishments with rooms between 101 and 150 there must be 4 adapted rooms (previously only 3 adapted rooms were required).
• Establishments with rooms between 151 and 200 must have 6 adapted rooms (previously from 150 rooms onwards, 3 adapted rooms were required plus 1 room for every 50 rooms or fraction thereof).
• Establishments with more than 200 rooms must have 8 adapted rooms plus 1 room for every 50 rooms or fraction thereof.
  

5.2 Equipment of bedrooms and bathrooms

Previous Decree 159/2003 required that all bedrooms, regardless of the classification of the establishment, must have windows or balconies allowing direct ventilation to the outside with a minimum surface area of 1.20 m². Now, instead of windows or balconies, cavities with a practicable area of not less than 8% of the useful area of the bedroom are required. These cavities must be capable of being darkened in the same way as windows and balconies used to be.

In addition, the new decree extends the minimum length of beds from 1.85 m to 1.90 m and makes furniture requirements more flexible: bedside tables, wardrobes and bedside lamps can be replaced by other items providing similar functionality.

For bathrooms, the reference to the power socket being fitted with a voltage indication disappears.

6. OTHER CHANGES RESULTING FROM THE CURRENT LEGAL CONTEXT AND THE EVOLUTION OF THE HOTEL BUSINESS IN GENERAL

6.1 Other applicable legal provisions

As was previously the case, apart from complying with Decree 19/2023, hotel establishments must comply with the applicable sectorial regulations. Among others, in addition to labour, town planning, accessibility and environmental protection legislation, the new decree mentions the necessary compliance with the regulations on building, fire prevention, safety and any, in general, other relevant regulations.

6.2 Free access

Decree 19/2023 reinforces the principle of free access to hotel establishments, which may not be restricted on the grounds of race, sex, sexual orientation, gender identity, gender expression or sexual characteristics, religion, opinion, disability or any other personal or social circumstance entailing discrimination.

However, access to and stay in the establishments may be conditional upon compliance with the rules of use or internal regulations, which must be visibly displayed in the entrance to the establishment and on the website, if available. Likewise, access to or stay in the facilities may be denied to persons who do not comply with the usual rules of coexistence in tourist establishments and to those who do not pay for the services used on time. For these purposes, the owners of hotel establishments may request the assistance of the police.

The rules governing the admission of pets must be displayed in visible places in the establishment and in the information on the promotion. Persons with disabilities may always be accompanied by assistance dogs.

6.3 Prices

Decree 19/2023 no longer refers to maximum prices for services. The reference is now to total prices. Total prices must be displayed to the public in a prominent place at the reception desk by any means, including digital media, which allows them to be easily located and read. These total prices should include all applicable fees, taxes, or charges, as well as discounts, where applicable.

Users must pay these prices at the place and time agreed with the hotel accommodation company, upon presentation of the invoice. The lodging of complaints does not exempt users from this payment. In the absence of express agreement, payment must be made at the establishment at the time the invoice is presented for collection.

Hotel establishments must accept cash and credit or debit cards and can now also accept any other valid means of payment.

6.4 Duration of the stay

The duration of the stay shall be freely agreed by the parties, although the price of the accommodation unit shall continue to be counted daily unless otherwise agreed. Complementary services may be invoiced daily or depending on their use, although other forms of invoicing are not excluded.

7. OUR SERVICES

This note has been prepared on a general basis and should not be considered advice.

However, in Ashurst Madrid we are experts in this sector of activity, and we are always willing to review any particular situation and recommend the most appropriate course of action in each case.