Law 6/2025 on the Sustainable Regulation of the Tourist Use of Dwellings defines second homes and distinguishes them from primary residences, yet subsequently subjects them to the same restrictive regime. This distinction reflects social reality and therefore entails a different legal treatment in terms of guarantees, taxation, statistics, and case law. Can second homes be treated differently for the purposes of holiday rentals, or is it legally possible to treat them in the same way as a primary residence?

By the legal team at Lajares Law Offices · Fuerteventura, March 2026

“A dwelling is a place in which one lives, resides or inhabits—that is, a place of habitual residence—whereas a boarding house is a place where guests are accommodated for an agreed price.” — Spanish Supreme Court Judgment 95/2024, 29 January

I. The elephant in the room: second homes exist, and the law itself says so

There is something striking in the debate surrounding Law 6/2025 of 10 December, on the Sustainable Regulation of the Tourist Use of Dwellings, enacted by the Parliament of the Canary Islands. Everyone speaks of “dwellings.” No one speaks of second homes—or, if they do, they gloss over their reality and expect them to function as primary residences.

And yet, anyone in the Canary Islands who has visited El Cotillo in August or passed through Costa Calma during Easter knows perfectly well that a substantial portion of the properties in those areas are neither intended, built, nor used for permanent living. They are second homes. They always have been. Their existence is neither new, accidental, nor marginal.

Indeed, the authorization of tourist use of properties does not clash as directly with second homes, since these are not intended as primary residences. This raises the question: does the regulatory framework of Law 6/2025 truly apply to them?

The law itself defines second homes, yet beyond occasional references, it largely disregards the distinction and subjects them to the same restrictive regime.

The explanatory memorandum acknowledges their existence, even suggesting that they may negatively impact primary housing supply—yet provides no concrete data on their number or scale, which is surprising given their relevance. It even hints at their possible exclusion.

The preamble also refers to case law from the Court of Justice of the European Union and the Spanish Supreme Court, particularly regarding the objective of ensuring sufficient affordable long-term housing. However, upon review, these judgments do not appear to concern second homes as such, but rather properties that were formerly primary residences, typically located in urban residential areas.

Article 2 of the law clearly distinguishes between primary and secondary residences:

“Primary residence: a dwelling that constitutes the permanent domicile of the occupant…”
“Secondary residence: a dwelling that does not constitute the permanent domicile of the occupant, used for fewer than 183 days per year for leisure, rest, or similar purposes.”

The law also distinguishes uses: residential use implies stable or permanent accommodation, whereas second homes fall under non-residential use due to the absence of permanence.

If the true aim of the law is to eliminate second homes and transform them into primary residences, this should be stated openly. Instead, the law imposes restrictions that may lead to absurd outcomes: properties that cannot be used for tourism, yet are not suited for permanent residence either—resulting in empty developments and lost economic activity.

Preventing second homes from being used for holiday rentals is, as a High Court has described, a “fallacy.” These properties are in fact ideally suited for that purpose.

II. What does the Supreme Court understand by “dwelling”?

This is not a rhetorical question. The Spanish Supreme Court has developed a clear definition: a dwelling, in legal terms, implies habitual residence, permanence, and the intention to live there.

In Judgment 95/2024, the Court stated that tourist accommodation is not a dwelling in this sense, as it lacks permanence and is intended for temporary stays.

The distinction is clear: a place used for occasional stays—such as a holiday apartment—is not a “dwelling” in the legal sense. It is a second home.

III. Second homes: a reality the legislator cannot ignore

Spain has over 3.5 million second homes according to national statistics. They are not a marginal phenomenon, but the result of decades of policy and social practice.

In regions like the Canary Islands, entire municipalities have developed around second homes and tourism. Ignoring this reality leads to flawed legal conclusions.

The law itself acknowledges second homes, yet applies the same restrictive regime as for primary residences. This uniform treatment is difficult to justify legally, as it disregards fundamental differences between the two.

IV. Urban planning: no distinction between primary and second homes

Urban planning law treats all residential use as a single category, regardless of whether the property is used permanently or occasionally.

This neutrality is intentional: planning law regulates land use, not personal behavior.

However, Law 6/2025 introduces a conceptual inconsistency by implicitly privileging permanent residence while leaving the planning framework unchanged.

If taken to its logical conclusion, this would imply: Prohibiting second homes altogether. Penalizing underuse of residential property. Reclassifying millions of legally acquired homes.

None of these consequences have been assumed by the legislator—and for good reason, as they would conflict with constitutional property rights.

V. If it is not a “dwelling” in the legal sense, does the law apply?

If the purpose of the law is to protect primary housing, then its application to second homes is questionable.

Second homes do not form part of the housing stock intended for permanent residence. Therefore, the legal rationale for restricting their use does not apply in the same way.

This does not mean they are unregulated—tourism regulations still apply—but the specific restrictions aimed at protecting primary housing may not be justified.

VI. How can a second home be identified?

Just as primary residence can be proven through various means, so can second home status. Evidence may include: Tax records, registration data or patterns of use.

At a broader level, urban planning context and infrastructure can also demonstrate that certain areas were designed for temporary or seasonal use.

Conclusion

The Supreme Court defines a dwelling as a place of habitual and permanent residence. A second home, by definition, is not such a place. Law 6/2025 itself distinguishes between the two. Applying the same restrictions to both is legally questionable. Second homes are not suited for permanent residence and should logically be used for holiday purposes.