The Supreme Court has agreed that if a community of owners wants to veto the installation of tourist apartments, it must expressly prohibit them in its statutes, since it is not enough to describe the use that can be given to the properties, such as residence, rental, offices or offices.
In a ruling dated February 11 to which EFE has had access, the civil chamber upholds an appeal filed against a July 2021 ruling by the Madrid Provincial Court.
The magistrates highlight the need for the express prohibition of tourist apartments, since in the case analyzed "only consulting rooms and clinics for infectious diseases are mentioned as a non-permitted use; illegal purposes; installing engines or machinery that are not those usual for household services or immoral, uncomfortable or unhealthy activities", but tourist apartments are omitted.
After the installation of a tourist apartment in a property, the neighbors reported it claiming that said activity was prohibited by the statutes and that, in addition, it constituted an "annoying and uncomfortable activity, which alters coexistence, so it must be prohibited."
In the first instance, a court understood that the activity carried out by the defendants was not contrary to the community statutes, and an "abnormal use" of the community facilities by the users of the apartment was not demonstrated.
Therefore, it cannot be understood that the exploitation of the tourist rental activity carried out by the defendants implies a transgression of the provisions of the horizontal property law, in such a way that it constitutes an "annoying or uncomfortable" activity.
The criterion was supported by the Madrid Court, and now the Supreme Court, which supports said decision, adds that "the owner cannot be deprived of the effective economic utility of the property nor of the autonomy of will to use, enjoy and dispose of the apartments or premises in the manner it deems appropriate."
The mere description of the destination of the litigious apartment does not imply "the prohibition of the activity to which it is destined", unless there is in the statutes of the community "an express provision that prohibits such use by its owners."
Tourist rentals are not included in the prohibited activities in the statutes, the development of which, as already noted by the court of first instance and the provincial court, "does not constitute an uncomfortable or annoying activity".
To prevent a tourist apartment from being installed in a home, the Supreme Court highlights, there must be "a specific clause" that prohibits it.
