In recent modifications, the law has attributed to the Resident’s Associations of the Horizontal Property Law certain attributions that can affect the right of possession of the owners who are members of above mentioned Association.
The ownership of houses regulated by the Horizontal Property Law is a sort of ownership where to the individual right of ownership of each of the dwellings is added a co-ownership right over the common elements.
The owners are authorized to decide, with the majorities required by Law, on agreements that may affect the individual rights of the co-owners in certain cases that are the ones we are going to include in this article.
A matter of great significance is the ability to reach agreements that may affect the private uses of residential properties or premises.
A) Could a use of houses or premises not legally stipulated in the statutes or in the new building be prohibited? Or could it be possible to forbid the modification of the legally stipulated use of a dwelling or premises?
Los usos de las viviendas y locales no tienen que ser necesaria y obligatoriamente los que se contemplen en la escritura de Obra Nueva, y por tanto en la escritura de compraventa, o bien en los Estatutos de la Comunidad de Propietarios, ya que se podrá destinar las viviendas o locales a usos distintos siempre y cuando no estén prohibidos en los Estatutos o en acuerdos de la Junta de Propietarios en determinados casos.
The uses of the dwellings and premises don’t have to be necessary and mandatory those that are considered in the deed of New Building, and therefore in the deed of sale, or in the by-laws of the Resident’s Association, since the dwellings or premises may be used for different purposes as long as they are not forbidden in the by-laws or in agreements of the Owners’ Meeting in certain cases.
So, we gather here some pronouncements:
“The action brought by the Resident’s Association seeking a declaration of the illegality of the use’s modification or destination when allocating the premises for being used as houses is dismissed, on the ground that there was no prohibition in that regard either in the foundational title or in the statutes.”
“The mere fact that in the foundational title premises are described as office does not suppose a limitation to the use that can be given to it and therefore does not allow to declare illegal a new business use”.
“It is reiterated as a case-law doctrine that limitations or prohibitions referring to the alteration of the use of a property within the scope of horizontal property require, in order for them to be effective, that they are expressly stated”.
Therefore we believe that the answer to the question we asked at the beginning, is clear, and therefore you can allocate a home or premises to a different use that it is not forbidden and likewise you can change the purpose of a local or house to use provided it is not prohibited, without the mere description of an use implying any limitation.
In this way, an office space could be used for other purposes, such as a cafeteria, as long as it is not an activity that has not been excluded, and as long as it does not cause discomfort to the community or is an unhealthy activity, etc.
But, could the Resident’s Association decide or agree the prohibition of the use of premises for a certain activity although it is not stipulated in the statutes or in the New Building the prohibition?
Could the Resident’s Association affect an absolute right such as the right of property by restricting a specific faculty? Well, the answer is yes; but for that it must be adopted an agreement with the majority established by the Horizontal Property Law and that agreement should not be harmful.
B) With that in mind and given the fact that is not insignificant, we would find ourselves with the right to prohibit the use of houses for tourist apartments.
The current regulation, based on the most recent changes, establishes the possibility that the Association, always with a specific voting percentage and a determined majority, may agree to ban the use of houses for tourist use without being able to claim against it, so that the new purchaser will be subjected and conditioned by the said vote; and that without prejudice to the fact that the current owner who is allocating his property to a tourist use does not affect him because it is a right prior to the prohibition, but if he sells his property he will be affected by the prohibition of use agreed by the Resident’s Association.
However, this precept is appealed before the Courts and its effects are suspended until the doubts raised by its legality are solved judicially.
While this important question is being clarified, the Residents’ Associations have the possibility of forbidding the use of tourist apartments and this can be done by alleging and proving that these are uncomfortable and annoying activities and also dangerous and given that the affected party will go to court, through the court it will have to be decided whether or not this cause has been proven.
There are judgments for all opinions, and thus there are judgments that prove the excessive use of houses by a high number of people consider that this implies an unusual use of community facilities; that this will inevitably lead to some friction resulting from cohabitation or misuse of the facilities; that it is also going to cause annoyances derived from the use that these people make of the houses, being normal that they carry out uncomfortable or annoying activities, like excessive noises caused by meetings, parties, and even more when there is no guarantee of control of a limit of occupants, etc; using the houses as tourism properties that are part of a Homeowners’ Association supposes that not habitual residents have to live with those that owners and this necessarily causes conflicts generated by the development of a commercial activity in spaces that are not especially prepared for it; and thus we could continue giving more examples of situations because there is no doubt that there is an increasing amount of conflicts generated by the use of houses as tourist apartments.