Second homes and property tax: how to know if you may be subject to a surcharge

Although many measures depend on local regulations and are not automatically applied, many small property owners are wondering what impact Law 12/2023 on the right to housing may have, especially with regard to possible property tax surcharges and the classification of ‘unoccupied housing’.

In this article, we explain what the law actually says, how local councils may interpret it and what preventive measures families who own a second home as a savings, holiday retreat or family asset can take.

What does current legislation say about empty homes and second homes?

Law 12/2023 allows local councils to apply a surcharge of up to 150% on property tax to homes considered permanently and unjustifiably vacant. This measure seeks to encourage vacant properties to enter the rental market and increase the supply of affordable housing.

However, it is worth highlighting some key points that often go unnoticed:

• It is not an automatic measure. Each local council must approve its own tax ordinance before it can apply the surcharge.
• It only affects large property owners. According to the law, this surcharge can only be applied to owners who own four or more residential properties.
• Second homes. Properties used as second homes are considered justifiably unoccupied if they have not been used for more than four consecutive years.
• There is a procedure and guarantees in place. Before imposing any surcharge, the local council must open a file, notify the owner and give them the opportunity to present evidence and arguments.

Therefore, if you only have a second home, Law 12/2023 does not consider you to be the owner of an unoccupied property, nor does this special IBI surcharge apply to you.

How do local councils detect whether a second home is unoccupied?

Local councils can use various indicators to detect empty properties, such as:

• Very low water or electricity consumption.
• The absence of registered residents.
• The lack of economic activity or declarations of use.

However, these indicators are not conclusive in the case of second homes, as it is perfectly legitimate to use them only on weekends, public holidays or during holiday periods. If the local council suspects inactivity, the owner can always prove their use by providing documentation or invoices.

Best practices for managing your second home

Although the surcharge does not apply to second homes, it is advisable to keep your documentation well organised:

• Keep receipts and utility bills, even if consumption is moderate.
• Declare correctly to the tax authorities that the property is a second home.
• Stay there regularly and keep some kind of record (receipts, photographs, bank statements).
• Check with the local council to find out if they plan to approve any kind of surcharge and what the criteria are.
• Consider temporary or family use (for example, letting children or relatives stay there occasionally), which also demonstrates actual use.

What happens if the property is actually unoccupied?

If it is not actually used and you do not wish to rent it out, it is important to remember that:

• The surcharge will only apply if the local council expressly approves an ordinance and the owner owns several properties.
• There is always the possibility of claiming justified reasons, such as building work, inheritance, health, job transfers or dependency.
• To date, few local councils have actually started to apply this surcharge, and most are still in the study phase.

In summary: how does Law 12/2023 affect your second home?

Taxation on second homes has not changed substantially for small owners. Law 12/2023 focuses on large property owners and genuinely empty homes, not on families who maintain a second home for savings, holiday use or family reasons.

If you only have a second home, you can rest assured: the law does not affect you in terms of the IBI surcharge if you use it. Even so, it is advisable to keep basic documentation proving that the property is used and is not permanently unoccupied.

For small property owners, the best strategy continues to be prevention, transparency and good communication with the local council.