Short-term rentals: why the Constitutional Court rejected Emilia-Romagna’s rules but upheld Tuscany’s framework

The issue is not whether Regions may intervene, but how

The regulation of short-term rentals is entering a new phase. In judgment no. 164 of 9 October 2026, the Italian Constitutional Court declared Articles 4 and 5 of Emilia-Romagna Regional Law no. 10 of 2025 unconstitutional. The law concerned the land-use and building regulation of properties used for short-term rentals.

A few months earlier, in judgment no. 186 of 16 December 2025, the same Court had upheld the main provisions of Tuscany’s Consolidated Tourism Act, including Article 59, which allows municipalities with a high tourist density and provincial capitals to introduce criteria, limits and authorisation requirements for short-term tourist rentals.

The two decisions are not contradictory. Read together, they indicate a fairly clear approach: Regions may regulate the territorial and tourism-related effects of short-term rentals, including through administrative restrictions, but they may not introduce measures that are general, unreasonable or disproportionate to the phenomenon they seek to address.

What Emilia-Romagna’s law provided

The Emilia-Romagna law introduced a specific urban-planning land-use designation called “short-term rental”, placed within the tourism and accommodation functional category. Article 4 provided that the change of an individual property from another functional category to the “short-term rental” designation, with or without building works, constituted a relevant change of use from a planning and building-law perspective and required the relevant building permit or other authorisation under regional law.

In practice, the use of a residential property for short-term rentals would generally have required a change of use and the related building-law procedure. The rule applied both to short-term rentals operated on a business basis and to non-business activities, without establishing a minimum threshold of use of the property.

Article 5 completed the system by allowing municipalities to identify, in their urban-planning instruments, specific areas in which the establishment of the “short-term rental” use would be permitted or made subject to specific conditions. The measures expressly contemplated included setting maximum percentages of units that could be used for short-term rentals, limiting or prohibiting certain building works, introducing additional dimensional and quality requirements, and making a change of use conditional upon the existence or creation of territorial and ancillary facilities.

The stated objective was to differentiate tourist accommodation across areas subject to different levels of pressure, contain overtourism in urban centres and, at the same time, promote the availability of housing for residents, workers and students.

The Court: regional competence is subject to proportionality

An important aspect of judgment no. 164 of 2026 is that the Court rejected the objections based on a violation of the State’s exclusive competence in the field of competition protection. The regulation of changes of use and tourist establishments was attributed to the field of government of the territory and, as regards the administrative aspects of tourism activities, to regional legislative competence.

The fact that a regional rule may affect market access or economic freedom does not automatically bring it within the State’s competence over competition protection. Regions may therefore adopt rules governing the use of properties and may also provide for authorisation procedures, provided that they act within the constitutional and European limits applicable to them.

The problem with the Emilia-Romagna law was identified on a different level: that of Articles 3 and 41 of the Constitution, concerning reasonableness, equality and freedom of economic initiative.

The Court applied a proportionality test involving three steps. The objective pursued must merit protection; the measure must be suitable for pursuing it; and it must not impose sacrifices exceeding what is necessary.

The fight against overtourism and the protection of the housing supply for long-term rentals were recognised as legitimate objectives. The critical issue concerned the instrument chosen.

The first problem: uniform rules for a territorially uneven phenomenon

According to the Court, overtourism is not a uniform phenomenon throughout the region. It is concentrated in certain cities, neighbourhoods or areas characterised by particular tourist pressure, whereas in other contexts short-term rentals may help diversify and increase accommodation supply.

Article 4 of the Emilia-Romagna law nevertheless imposed the change of use throughout the entire regional territory, without distinguishing between saturated areas and areas where comparable needs of containment did not exist.

The Court considered this general application disproportionate to the stated objective. It instead placed emphasis on the different structure of Article 5, which left municipalities the possibility of taking action in specific territorial areas. The problem was therefore not the possibility of introducing localised measures, but the fact that the regional legislature had made a uniform regional rule the basis for those measures.

The judgment thus confirms a criterion likely to guide future legislation: the more localised and variable the phenomenon being regulated, the more closely the regulatory response must be calibrated to the territory concerned.

The second problem: unequal treatment of short-term rentals and extra-hotel accommodation

The Court also identified unreasonable unequal treatment between short-term rental operators and operators of extra-hotel accommodation facilities, such as room-rental businesses and holiday homes.

Under the Emilia-Romagna system, these facilities had to be operated on a business basis but could retain a residential land-use designation. The challenged law instead imposed the change to the tourism and accommodation category on short-term rental operators, even where the activity was occasional and non-business in nature.

The distinction was not considered adequately justified. If the objective is to align the planning designation with the actual use of the property, the obligation should be linked to stable and organised use, or to an objective threshold of use for tourist purposes. Article 4 contained no such threshold and also affected occasional activities.

The disparity also applied to business-based short-term rentals. In the Court’s view, it was not clear why such operators should be subject to a more burdensome planning regime than extra-hotel facilities that were likewise operated professionally.

For these reasons, Article 4 was declared unconstitutional. Article 5 fell by implication because it regulated the establishment of the new land-use designation introduced by Article 4.

The Tuscan precedent: a more selective and territorially targeted framework

The comparison with Tuscany is particularly useful. Article 59 of Regional Law no. 61 of 2024 does not impose a change of use indiscriminately throughout the region. It allows municipalities with a high tourist density and provincial capitals to identify specific zones or areas in which criteria and limits may be established for short-term tourist rentals.

Municipal regulation must comply with the principles of strict necessity, proportionality and non-discrimination. The law also identifies the factors to be considered: the ratio between beds allocated to short-term rentals and the resident population, the distribution of accommodation facilities, the characteristics of the urban fabric, the historical, artistic and landscape value of the area, quality standards and the impact on the availability of housing at affordable rents.

In municipalities adopting such regulations, the activity may be made subject to a five-year authorisation for each individual unit, and a maximum number of authorisations may be established in certain areas. Transitional measures are also provided in order to accompany the application of the new limits. Certain exemptions are available, including an exemption concerning the rental of part of the unit in which the landlord resides.

In judgment no. 186 of 2025, the Court held that the constitutional objections concerning Article 59 were unfounded. The provision was attributed primarily to tourism and government of the territory, rather than to civil law, because it concerns administrative aspects preceding and external to the rental contract.

The Court emphasised the local nature of the phenomenon. The problems arising from short-term tourist rentals are concentrated in certain areas and differ from one territory to another. For this reason, the regional and municipal levels may be better placed than the State to balance the interests of owners, guests, residents and the urban fabric.

The decisive difference: not only territory, but also the regulatory model

The comparison between the two judgments reveals at least four significant differences.

The first concerns territorial scope. Tuscany concentrates restrictive regulation in municipalities with high tourist density and in provincial capitals, leaving municipal regulations to identify the areas concerned. Emilia-Romagna had introduced a general obligation to change the land-use designation throughout the entire region.

The second concerns the basis of the restriction. Tuscany links intervention to territorial data and factors: the resident population, the number of beds, urban characteristics, cultural heritage and the availability of housing. The Emilia-Romagna framework did not make the change of use conditional upon exceeding an activity threshold or upon the existence of particular tourist pressure.

The third concerns the distinction between short-term rentals and classified accommodation facilities. In Tuscany, the requirement that extra-hotel facilities be placed in the tourism and accommodation category was considered reasonable because it was linked to stable, organised activity operated on a business basis. The Court distinguished the structural and building-law profile of the property, which may retain the characteristics of a residential dwelling, from the operational profile of its use where it is permanently integrated into the accommodation sector.

The fourth concerns gradual implementation. The Tuscan law provides transitional rules and preserves, within certain limits, the possibility of using the property for non-business tourist rentals. The Court considered it relevant that owners were not absolutely deprived of the possibility of using their property for tourism, but could opt for a different model of use, including one that was non-accommodation-based or non-business in nature.

The Court did not rule out quotas

One passage of the Emilia-Romagna judgment deserves particular attention. The Court did not consider the introduction of quotas for short-term tourist rentals in specific areas unconstitutional in itself.

Setting a maximum percentage of units that may be used for short-term rentals may be compatible with Article 23-ter of the Consolidated Building Act where it does not amount to an absolute prohibition, but instead makes the establishment of that use conditional upon compliance with a ratio between short-term rentals and residential units.

The guarantees laid down by national law on changes of use must nevertheless be respected. This includes the prohibition, in the cases provided for, of requiring additional areas for general-interest services or mandatory minimum parking provision.

The Court’s message is therefore more nuanced than a simple rejection of restrictions. Localised and adequately justified measures may be lawful. What fails constitutional review is a general restriction that is not linked to a threshold or to an adequate connection with the actual intensity of the phenomenon.

Consequences for Regions and municipalities

Judgment no. 164 of 2026 does not prevent Regions from intervening in the field of short-term rentals. On the contrary, it confirms that tourism and government of the territory provide suitable legal bases for regulating the administrative aspects of the activity and the urban-planning effects of its expansion.

Future legislation should, however, avoid at least three risks: subjecting occasional and professional activities to the same regime; imposing uniform obligations in territories where comparable problems do not exist; and conferring on municipalities powers that are undefined or disconnected from objective criteria, adequate investigations and verifiable reasons.

For municipalities, the most significant point is that local regulation cannot be regarded as a licence to introduce absolute prohibitions or automatic restrictions. Measures should concern specific areas, be adopted through the appropriate planning instruments, be supported by concrete reasons and be consistent with national legislation on changes of use.

An evolving balance

The two judgments of the Constitutional Court outline a balance between territorial autonomy and economic freedom. On the one hand, short-term rentals have not been classified as an untouchable component of the right of ownership. Their operation may be regulated where urban planning, residential stability, the sustainability of public services, and the protection of historical and cultural heritage are at stake.

On the other hand, a public-interest objective is not sufficient by itself to legitimise every measure. It must be shown that the restriction is genuinely connected to the problem to be addressed, operates in the territory concerned and does not create unjustified disparities between operators carrying out comparable activities.

Tuscany passed this constitutional review because it adopted a selective, territorial and gradual model. Emilia-Romagna failed it because it imposed a general obligation to change the land-use designation without distinguishing either between territories subject to different levels of tourist pressure or between occasional and professional activities.

The direction indicated by the Court therefore appears clear: regulating short-term rentals requires more than choosing a legitimate and widely shared objective. The rules must be proportionate to the actual geography of the phenomenon and consistent with the variety of operators involved.

© Avv. Gabriele Lanzi