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What requirements are necessary to prohibit disturbing activities in communities of owners?

​It is very common that the Communities of Owners consider the possibility of prohibiting certain activities that may be considered annoying in the Community in order to avoid problems.

Miguel Olavarría

Date 19/12/2019

It is very common that the Communities of Owners consider the possibility of prohibiting certain activities that may be considered annoying in the Community in order to avoid problems. Article 7.2 of the Horizontal Property Law states that certain activities that are considered harmful may not be allowed, as long as this prohibition is included in the statutes. They will not be allowed, therefore, that they are included in the Internal Regime Regulations, since its purpose is to regulate only the rules of coexistence in the community. In fact, the rules integrated into said regulation will only require a simple majority for approval or application while those issues affecting the title or statute require unanimity. Therefore, such prohibition must be included in the statutes and therefore be approved unanimously.

The doctrine of the Supreme Court has established a series of requirements for the validity of statutory clauses that limit or prohibit the alteration of the use of a property, always remembering that the prohibition must be interpreted restrictively and permissibility broadly. The requirements are as follows:

a) Firstly, it must be a clear and precise stipulation. The limitations or prohibitions referred to the alteration of the use of a property required for its effectiveness that they must be expressly stated, requiring a specific stipulation that determines it, therefore the mere description of the use and destination of the property contained in the statutes or in the title is not sufficient. Likewise, in order to be effective against third parties, it must be registered in the Land Registry (Supreme Court Judgment 728/2011 of 24th of October, 145/2013 of 4th of March, 20th of October 2008 or 30th of December 2010).

b) Secondly, it must be in accordance with the general interest of the Community of Owners. For example, the Supreme Court Judgment of 16th of May 2008, states that it is valid that some statutes do not allow a professional activity given that it is a purpose that requires a greater influx of public than usual in a house intended for housing.

c) Finally, it cannot contravene morality, good customs or public order.

On the other hand, despite the fact that the approval of the prohibition of annoying activities requires unanimity of all the owners according to Article 17.6 of the Horizontal Property Law, there is a speciality in the case of tourist accommodation. Recently, the Royal Legislative Decree 7/2019 of urgent measures in the area of housing and rent, in force since last 6th of March, has included a new twelfth paragraph in Article 17 of the Horizontal Property Law, which has established an exception in cases of agreements that limit the tourist use of housing, being necessary only for approval in Board the favourable vote of three-fifths of owners and quotas.

 

 

 

 

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