Section 7 Restrictions on alterations to units and dispute resolution

(1) The owners of each flat or premises may modify the architectural elements, installations or services of their flat or premises, giving prior notice to the commonhold representative provided such work does not diminish or alter the safety of the building, its general structure, its external image or configuration, or prejudice the rights of another proprietor.

 

The owner and the occupant of the flat or premises shall not make any alteration in the rest of the estate . If the owners notice the need for urgent repairs, they shall inform the administrator without delay.

 

(2) The owner and the occupant of the flat or premises shall not carry out in such flat or premises, or in the rest of the building, any activities which are not permitted by the Articles , or which may cause damage to the estate or contravene the general regulations concerning nuisance, unhealthy, noxious, hazardous or unlawful activities.

 

The president of the commonhold association, on his own initiative or at the request of any owner or occupant shall request the immediate ceasing of any of the activities banned by this section under warning of appropriate court action.

 

If the offender persists in his/her conduct, the president, subject to the authority of the Owner’s Committee, duly convened for this purpose, may undertake a court injunction procedure, which, insofar as not expressly provided for in this section, shall be handled by ordinary procedure.

Once the action is brought, along with the accreditation of formal notification to the offender and the certification of the resolution adopted by the Owners’ Committee, the court may order as a precautionary measure the immediate cessation of the prohibited activity, under admonition of incurring an offence of contempt.

 

Furthermore, the judge may adopt any provisional measures necessary to ensure the cessation order. The action must be brought against the proprietor and, if fitting, against the occupant.

 

If the judgement were for the claimant, it may decree, besides definitive cessation of the prohibited activity and the awarding of damages as may correspond, the forfeiting of the defendant’s right to use the flat or premises for no more than three years, depending on the seriousness of the infringement and mischief caused to the commonhold. If the infringer were not the owner, the judgement may definitely terminate the offender’s rights to the flat or premises and order his immediate eviction.

 

7.1 Restrictions on alterations to units and common parts

 

7.1.1 Scope of the prohibition

 

In commonhold land, the usual content of the ownership right is limited in the extent that the exercise of that right may not affect the others commonholders nor prejudice the common parts. SC 23-07-2004 and 23-02-2005

 

7.1.2 On private parts

 

To what extent the owner could use his or her ownership right to modify private parts is tricky question, as a general rule, it is admitted that the private area inside his property is actually where a commonholder is free to modify, without prejudice of the limits established in the first subsection of this section.

 

Regarding the notice which must be given to the commonhold’s representative, the OC may not stop the works on the sole ground of lack of it. This notice should be distinguished from permission. There is no specific sanction or consequence in the Act for breach of this duty. The aim of that notice is only to inform the rest of the owners about the prospective nuisance they may suffer as a consequence of the building works.

 

In this section ‘general structure’ means bearings walls and floor structure. ‘external image or condition’ refers to everything regarding facades or even canopies. Although windows, balconies and terraces are not strictly common parts, it is not allowed to modify them if, as a result of that modification the façades are altered in their configurations.

Thus, in principle no visible changes to the building’s exteriors are permitted. However, image is a matter of aesthetic judgement which varies with individuals and is not measurable. Decisions which affect any common part are entrusted to the OC. They cannot be left to, or dictated by, the decision of an individual commonholder with respect to his own unit. The result would be chaos. It is for the OC to decide whether there will be uniformity in the external appearance of the building, either total or in particular respects

Limits established in this section will not operate where a commonholder obtains unanimous consent from the OC. Obviously, the rest of commonholders will not authorised works which are detrimental to the commonhold.

 

As it was held by the CA ruling in Madrid 04-01-2006 it is irrelevant whether those works are of benefit or not to the commonhold, or who assumes the cost. It may occur that affected unit-holders consent for whatever reason, despite the possible prejudice caused. In that case the Committee is not entitled to prohibit those works unless they ‘diminish or alter the safety of the estate, its general structure, its external image or condition.’

 

7.1.2.1 Special reference to glazing private terraces or balconies

 

The general rule is considering this as an alteration of external image which is prohibited. Where an owner wants to glaze his balcony or terrace he must be authorised by the Owners’ Committee through a unanimous resolution. SC 05-03-1983, CA Madrid 18-09-2006, CA Alicante 20-07-2005 CA Lugo 09-11-2000 CA Madrid 18-11-2008

In the case of lacking the prescribed consent, the Owners’ Committee shall call for a meeting to allow a time limit for the restoration of the unit to the previous state. Where the owner refuses, the commonhold could sue him applying for a court order for the compulsory destruction of the works. If the commonholder is still reluctant to comply with the order, the commonhold may carry out the works and the owner must pay the expenses. The argument that the Town Hall has granted permission to avoid the required consent will not be accepted, in accordance with s. 17, which obliges to have the unanimous vote of the Committee if the work entails an alteration in the façade.

Civil courts consider it irrelevant whether or not the owner has obtained building permission. CA ruling in Asturias 05-04-2004, CA ruling in Madrid 28-06-2004 and 15-06-2005

 

There are several circumstances where this may arise:

 

i. The Articles may provide that is not mandatory to obtain consent of the OC in order to glaze terraces or balconies. Only a notice to the OC would be necessary.

ii. Articles exonerate commonholders obtaining permission, the OC is not entitled to stop those works.

iii. The owner is authorised by the Owners’ Committee

iv. The owner is entitled because he has the implied consent of the OC, which means that the Committee may not act against the owner after several years. SC 31-01-2007 05-10-2007 05-11-2008.

CA Madrid 11-02-2008 considered 12 years, CA Tenerife 29-09-2001 submitted a term of 10 years, CA Barcelona 19-10-2007 8 years and CA Madrid 16-10-2006 8 years

 

The rule of tacit consent is widely applied by the Supreme Court, it means a form of consent which is not expressly granted , but rather inferred from actions and the facts and circumstances of a particular situation (or in some cases, by silence or inaction).

This problem often stems from inadvertence: a lack of familiarity with the rules leading to consent having been given erroneously in the past; a failure to enforce past transgressions or a president having given approval on a matter falling outside his sphere of responsibility. Much litigation is caused not necessarily because of any malignant intention to thwart the will of the OC, but rather because of a sense of unfairness that a privilege that has been allowed to other owner in the past is being unfairly withheld from the litigant commonholder.

The term is most commonly encountered in the alteration of common and private parts. Tacit consent also means that if other owners in the same commonhold have glazed their terraces or balconies previously with tacit or express consent, the OC may not then prevent new owners to carry out such works .

 

Problems arise when the previous glazing and the planned one do not possess the same features; in that case the tacit consent’s rule breaks up.CA ruling in Madrid 29-06-2004, 27-06-2003 and 27-12-2004

 

7.1.3 On common parts 

 

If an owner thinks that any common part is affecting his property and needs to be repaired, he should give notice to the commonhold representative (administrator) and if no action is taken he will be entitled to claim damages.

 

There is an exception in the case of urgent repairs, for instance, to avoid fall of a cornice, any commonholder may carry out urgent repairs works where administrators or presidents are inactive in the matter. In order to sue an owner for unauthorised works the provision of r. 249 (1) 8 of the Civil Procedures Rules 1/2000 must be followed which establishes the ordinary procedure as suitable.

 

The aim of this procedure will be the demolition of the unauthorised building works. Where the owner refuses to do so, on his own, the trial judge could allow the commonhold to carry out the demolition, with the owner being liable for the expenses.

 

7.2 Prohibited activities

 

Central to the concept of commonhold land is the principle that each commonholder, in exchange for the benefits of association with other commonholders, must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned, property.

In order for a commonhold to serve the best interests of the owners, it is necessary to create a sense of community, which is created through education rather than through the law.

 

There are numerous ways in which legal disputes can break out between commonholders and the law reports are full of such cases Prohibited activities could be defined as those that interfere with the use or enjoyment over common parts or with the health, safety or comfort of the commonholders at large.

 

There are three categories of banned activities set forth in this section, which refers not only to those activities performed in the property but also in the common parts.

 

i. Not permitted by the Articles

 

ii. Those activities which ‘ may cause damage to the property

 

iii. Those activities which ‘contravene the general regulations concerning nuisance, unhealthy, noxious, hazardous or unlawful activities

 

It must be stressed that it does not matter who is causing the nuisance or who is being affected, whether it be owners, tenants or others.

The Act does not delineate exactly what is and what is not a nuisance.

 

Furthermore, two commonholders might both consider that the other is creating a nuisance. Therefore, nuisance is always a matter of subjective judgement.

Prohibited activities prescribed by internal rules are not included in the action established in this section. CA ruling in Cantabria 31-10-2003

 

7.2.1 Activities forbidden by the Articles 

 

Prohibitions shall be construed in a restrictive way due to the general principle of private property enshrined in s. 33 (1) of the Spanish Constitution.

 

That means that the ban must be clearly expressed and shall be of no effect in case of doubt in its interpretation.

Usually, restrictions have the aim of ensuring that private businesses are not permitted to carry out their business from residential properties.

Entrepreneurs, lawyers, doctors, architects, engineers etc, are often seen to be seeking this right in the courts against commonholds.

 

Recently, the decision 929/2008 (20-10-2008) of the Supreme Court has explained the scope of this restrictive rule.

In this case a commonhold was intending to close a cosmetic surgery clinic on the grounds of what had been stated in the title regarding the description of the whole building.

Its title described the distribution of the floors and distinguished between high floors designated as a residential units and low floors for premises in which the use were restricted to commercial purposes, however there was no express prohibition to run private business from any of the properties.

The Court took the approach that it was not fair to infer a prohibition simply from the distinguishing between premises designed for commercial and residential purposes contained in the title.

As a rule, any general provision in the Articles restricting proprietary rights shall be of no effect.

 

A general prohibition could be challenged. For example, absolute restrictions on the ability of a commonholder to lease a commonhold unit are not admitted.

 

Controversy arises:

 

i. Over business premises when there are exclusive rights to run only specific business in the commonhold’s premises established by the Articles. In this case the interest of the commonhold shall prevail over the new owners or tenants .

 

ii. Over proprietors who want to run businesses from their residential homes. Here the general rule shall not prevail over the provisions of the Articles

 

The last mentioned dispute is clearly a conflict between free competition rights and the rights conferred to the commonhold to agree and covenant that the use of the properties of the commonhold shall be exclusively for residential purposes.

 

7.2.2 Harmful activities

 

This section only refers to ‘damage to the property’, however any damage to the commonholders should be also included.

This concept of harm shall be construed according to the particular case. Evidence of the relation between the activity and the harm shall be required (causation).

 

This concept of harm must be connected with commonholder’s duties imposed by section 9 (1) (a) and (b).

 

7.2.3 Nuisance

 

The tort of nuisance is committed when one unreasonably interferes with the use or enjoyment of another property.

For instance, the making of excessive noise may amount to an actionable nuisance, in which case the commonhold may seek an injunction to bring it to an end.

Nuisance can be antisocial behaviour, noises from pubs or clubs or fumes. Having permission granted from the local council is irrelevant if there is nuisance in any way, however it is usually quite difficult to prove nuisance whether the public regulations are fully complied with.

 

Similarly, lack of a license is not enough for the courts, nuisance has to be proved. CA ruling in Navarre 08-01-2001

 

The courts have adopted a subjective approach in considering the particular effect of the nuisance, to the extent that what may be considered nuisance in one commonhold may not be in another.

What is always required is the habitualness and persistence. CA ruling in Madrid 28-06-2006.

 

I detect certain schizophrenia in the approach of the courts but in general, accommodation is considered ‘nuisance’ as it was held by the CA ruling in Madrid in its judgement of 03-11-1993.

 

The activity is not ‘per se’ considered a nuisance but its consequences.

Even the abandonment of a property is considered detrimental for the commonhold. In that case it would not be suitable to argue on the ground of this section 7 (2), but would be better to apply in Court for an order in which the owner will be bound to close the property.

The Court of Appeal in Saragossa on its judgement of 18-02-1992 held that there was nuisance because of the tenure of a donkey in a basement.

Twelve cats living in a flat was also considered to cause nuisance in a judgement of the CA ruling in Barcelona in 03-12-1996.

The Supreme Court in 06-07-1998 held that nuisance was not caused to the rest of the owners by the running of a clinic in a flat.

 

7.2.4 Contravention of general regulations

 

The Act is referring to all those orders of local authorities governing licenses, required in order to exercise any activity deemed as special because of its nature, which could have an adverse impact on the residential amenity of the nearby residential properties.

 

Even though the requirement of contravention is quite clear in the wording of this section, case law shows that it shall only be persuasive in aiding the Court when deciding whether or not the activity could be deemed as included in this section. ‘General regulations’ means orders of the particular Town Hall as well as statutes or regional rules. Recently, the Air quality and Environment protection Act 34/2007 was enacted in order to substitute the former regulations contained in the Decree 2414/1961 .

 

7.2.5 Unhealthy, noxious, hazardous activities

 

Unhealthy means everything which is directly or indirectly harmful for the human health; it could be noise, smell, fumes or gas.

 

For example, an owner neglecting the hygiene in his property so much so that it jeopardizes the health of the other owners may be included as an unhealthy activity.

 

Noxious means everything which could affect to the environment in general. Hazardous refers to any activity likely to be dangerous, for example to use or to store toxic or flammable products.

 

7.2.6 Unlawful activities

 

Unlawful means misconduct offences so those acts forbidden by law shall be included. Until the amendment of the Act in 1999 there was a reference to ‘immoral’ activities being replaced for ‘unlawful’.

 

Now, that concept shall be construed in accordance with principles provided in the Spanish Constitution of 1978 currently in force such as the dignity of the person , the right to life and to physical and moral integrity , the right to personal and family privacy , the protection of the family , the right to health protection , the right to enjoy an environment suitable for the development of the person .

 

Because of that new construction, it would very difficult to close a brothel or night club solely on the ground of the nature of the activity performed. A high standing brothel without any nuisance would be permitted.

The CA ruling in Madrid on its judgement of 18-02-2005 held in that particular case that it had been a nuisance to the owners due to the timetable of the activity, by reasons of the large numbers of customers around, as well as the likehood of crime and drug dealing being connected with the activity in question.

 

7.2.7 Approaches of courts considering prohibited activities

 

• A 266 m2 house inhabited by up to 40 Chinese workers was considered a nuisance by the CA ruling in Saragossa 27-07-2007.

• Regarding prostitution; the CA ruling in Burgos 30-04-2004.

• A school of Spanish in the first floor was considered a nuisance by the CA ruling in Malaga 07-10-1997. The CA ruling in Asturias 23-04-1999 took a contrary approach.

• Barbecues in private parts. It must be expressly prohibited by the Articles. CA ruling in Malaga 10-10-2003.

• Accommodation activities CA ruling in Navarre 15-02-2005 CA ruling in Cantabria 07-11-2003.

• Noise from an air conditioning unit. CA ruling in Las Palmas 21-05-2005.

• Dogs. CA ruling in Huelva 08-10-2004 and CA ruling in Segovia 21-10-2005.

• Quarrels and yells at night. CA ruling in Barcelona 26-04-2006.

• Stables in nearby detached house. SC 19-07-2006.

• Feeding pigeons that get dirty the development. CA ruling in Asturias 27-06-2006.

• Noisy and crowded bar with licence. CA ruling in Madrid 11-10-2004. • Breeding dogs in garden of a semi-detached house. CA ruling in Toledo 15-01-2008.

 

7.2.8 Noise problems

 

One of the most common complaints about neighbours is that they make too much noise.

It may be possible to take legal action against them, but it is highly desirable in practice for the parties to try to resolve disputes of this nature amicably. In particular, the need to compromise is important, for what is an acceptable noise level to one person may be unacceptable to another and it is difficult for a Court to set down specific rules on an issue such as this.

Section 3 (d) of the Noise Act 37/2003 defines noise pollution as ‘presence in the ambient of noise or vibrations, whichever the acoustic source comes from, which entail nuisance, risk or harm to individual and their activities or to goods of any nature, or affects significantly to the environment.

The chief problem is that this Noise Act in sections 2 (2) and 28 (5) refers to council regulations in order to govern vicinity noises.

Only noises caused by bars, industries etc shall be under the Noise Act. Similarly, s. 4 (a) of Land Act 2/2008 provides that citizens are entitled to enjoy a decent housing, suitable and accessible and protected against noise.

In regard to building standards, Royal Decree 1371/2007 provides the requirements in construction in order to insulate housing. Some regional bodies also have their own rules regarding noise pollution

i. Baleares 1/2007 Act

ii. Murcia 48/1998 Decree

iii. Valencia 7/2002 Act and 2/2006 Act

iv. Andalucía 7/2007 Act

 

These regional rules usually refer to council regulations in order to delimit the vicinity noises.

In general, most of these rules consider that more than 40db inside the property during the day time shall be deemed as noise. Courts are very sympathetic with individuals affected by acoustic pollution and tend to compensate them even when pollution does not reach limits laid down in regulations.

These regulations are barely enforced by Town Halls, which are rather passive, and as a result are often condemned to indemnify due to their passiveness. CA ruling in Valencia 14-12-2005 and High Court in Catalonia 20-01-2006

Regardless the compliance of the council regulations against noise where harm is probed the courts are claiming the accountability of those who are causing unhealthy effects to individuals. SC 24-05-1993 and 03-09-1992

 

The Legislator is aware of the failure in this fight against noise in Spain, and for this reason it has been included as an offence in s. 325 of the Criminal Code by the 15/2003

 

Act. 7.3 Dispute resolution procedure

 

It is important to point out that it may also be possible to persuade the local authority to take action against a commonholder.

 

Subsection (2) establishes the procedure to be followed by the commonhold where there is a breach by any owner.

After attempt to resolve the matter informally, a default notice may be issued specifying the breach and allowing a reasonable period for a response or a remedying on the breach.

 

7.3.1 Before issuing proceedings

 

7.3.1.1 The default notice

 

Before any court proceedings are begun the president ‘shall request the immediate ceasing of any of the activities banned under this section under warning of appropriate court action’.

At that stage and for this purpose it is not mandatory to have the approval of the OC CA ruling in Burgos (27-06-06)  but what is compulsory is to serve notice in a way which gives evidence (CA ruling in Asturias 29-01-2004, CA ruling in Sta. Cruz de Tenerife 07-07-2004 and CA ruling in Madrid 19-07-2007) of the acknowledgment .

A CA ruling in Madrid upheld the validity of a request made by the administrator with the approval of the president.

 

The default notice must specify:

i. The alleged breach in sufficient detail to enable the alleged defaulter to understand how it is contended that the Articles have been, are being or might be breached.

ii. A reasonable period within which the alleged defaulter must cease and/or remedy the breach .

iii. A prominent warning of the consequences of failure to comply with the default notice within the required period.

If it is a tenant causing the harm, it is enough to serve a default notice to him, not being necessary to notify the proprietor. CA ruling in Asturias 24-06-2004

The CA ruling in Las Palmas 01-07-2003 used a different approach holding that it is enough to serve the default notice to the proprietor. Paradoxically, the court action shall be brought against both co-defendants (SC 19-04-1993 and CA ruling in Lleida 09-09-2003) ; the landlord and the tenant so although it is not compulsory to give notice to the first, it is convenient to do so in order to warn about the prospective consequences. Perhaps in that case the landlord could persuade the tenant to stop the nuisance.

 

7.3.2 Legal capacity

 

The Act sets out the type of the cessation action that an owner cannot directly initiate, therefore it appears that without the involvement of the president and the OC the affected owner would only have a chance through the ordinary procedure established in law for activities not performed in commonholds.

The resolution of the OC in order to adopt the court method requires ordinary majority in accordance with s. 17.

Where the president rejects or fails to start the cessation action, the affected owner may summon the Owners’ Committee under s. 16 (1) Where the affected owner does not have the support of the OC he may make use of sections 590, 1902, 7 (1) and 1908 of the Civil Code although he won’t ever obtain the ‘forfeiting of the defendant’s right to use the flat or premises’.

 

Section 590 ‘Nobody is entitled to build, near to a someone else’s wall or to a dividing wall, wells, sewers, aqueducts, furnaces, forges, chimneys, stables, corrosive materials stores, steam devices or factories that by theirselves or by their products are dangerous or noxious, without keeping statutory or usual distances and without carry out the necessary works required by the regulations’ In the absence of regulations, it shall take the necessary precautions, prior expert opinion in order to prevent any harm to the nearby buildings

 

s. 1902 ‘A person who causes harm to another by action or omission, through fault or contributory negligence is liable for damages

 

Section 1908 ‘Likewise, owners shall be liable for damages caused by: • Explosion of machines which have not been cared and ignition of explosive materials which were not put in a safe and proper place

• Nocive smokes or fumes for people or properties.

• Falls of trees placed in busy locations when they were not been caused by force majeure.

• Sewer or infectious material stores fumes built without precautionary and appropriate measures

 

A decision of the Owners’ committee to reject the adoption of measures against an owner may be challenged and reversed in pursuance of s. 18 (1).

 

7.3.3 Ordinary procedure

 

Regarding the rules of this procedure, r. 249 (1) (8) of the Civil Procedures Rules 1/2000 sets out the ordinary procedure as appropriate.

Regarding the burden of proof, the onus is on the commonhold to prove the seriousness of the case.

 

7.3.4 Precautionary measures. 

 

It is well known that Spanish courts are extremely slowly thus it is crucial to get from the court any measure provided by law to ensure immediate cessation of the nuisance. Rule 726 of the Civil Procedure Rules on precautionary measures provides its conditions and r. 727 specifies concrete precautionary measures.

 

In accordance with s. 732 (2) of the CPR 1/2000 precautionary measures may be adopted even without hearing defendants.

 

In order to achieve those precautionary measures such as the closing of a business due to noise, the following documents should be included:

1. Noise measurement

2. Affidavit to allow evidence to be gathered from witnesses who may not be available to testify in person at court, or who may otherwise fear for their safety if their true identities are revealed in court.

3. List of owners willing to testify in the precautionary measures hearing.

4. Certified copy of the Articles

5. Copy of the regulations contravened by the defendant

6. Copy of the Committee’s minute in which the president is authorised to start proceedings

7. Copy of the default notice

 

The application for precautionary measures shall be included in the first lawsuit as well as the proposed means of proof.

The CA ruling in Madrid 14-101-2004 granted precautionary measures to close a brothel in a flat.

 

7.3.5 The forfeiting of the defendant’s right to use the property

 

This is the last resource to prevent nuisance and could only be imposed for those situations which are especially serious for a maximum of 3 years.

The CA ruling in Asturias 12-06-2006 deprived the use of a flat because the commonholder was throwing excrements, urines and oil through the window.

The CA ruling in Madrid 20-05-2003 deprived the use of a flat during 2 years because of noise and other nuisances.

The same approach was taken by the CA ruling in Pontevedra 27-07-2004 and the CA ruling in Badajoz 07-05-2007, in the latter case three months because of music on full volume.

 

7.3.6 Extinction of lease agreements

 

Indicated only in the case of when a non-owner is causing the nuisance. That non-owner could be a tenant or usufructuary amongst others.

The judgement shall declare the agreement terminated and subsequently eviction.

The CA ruling in Valladolid 12-09-2005 extinguished a lease agreement of a mentally ill person because of disruptions caused to commonholders.

 

7.3.7 Negative prescription of the legal action 

 

Although the concept of justice requires that like cases be treated alike, there is no agreement in the doctrine about the prescription of the commonhold’s right to take legal action against the breach of commonholders.

 

Some of the courts hold that s. 1964 of the Civil Code will be applicable, which establishes a 15 years term (CA ruling in Madrid 27-10-1982, CA ruling in Lérida 21-10-1996 and CA ruling in Valencia 30-12-1996) whereas others submit that the period of time beyond which the commonhold’s right is not enforceable is 30 years. CA ruling in Guadalajara 04-02-1997 and CA ruling in Santa Cruz de Tenerife 25-09-1999