What should we do in the case of a resident in a community of owners who is carrying out in a dwelling activities that are either disturbing other residents, banned in the Statutes, or are even illegal?
How does the law protect us, and what actions are available to us to get activities stopped when they prevent us resting or enjoying our own property?
Article 7.2 of the Law of Horizontal Division deals with this issue and envisages a special procedure to avoid situations which, in some cases, can become extremely disturbing.
Indeed, the law clearly says that neither the owner nor the occupant of an apartment or commercial unit may carry out in it, or anywhere else on community property, activities which are banned in the Statutes, which cause damage to the property or which contravene general rules about activities which are disturbing, a health risk, harmful, dangerous or illegal. If a resident, despite such prohibition, maintains their attitude and ignores appropriate warnings from the community’s administrator, then there is a legal procedure aimed at providing a legal ruling against the owner or even tenant requiring the definitive cessation of the disturbing activity or even ordering an eviction.
Nonetheless, it is important to understand that we cannot apply to the Courts straightaway to achieve this special protection. In the first place we have to channel our complaint through the community and follow the appropriate proceedings before taking legal action.
In practical terms this means that the community President, either on his own initiative or that of another owner or resident, will require whoever is carrying out activities banned by this article of the law to stop immediately or else face legal action.
If the culprit continues regardless, then the President, with prior authorization from the owners duly convened for the purpose, will be able to start legal action to force the cessation of the activity through court proceedings.
According to the law, once a complaint is presented along with clear evidence of the demand sent to the offender to stop, and proof of the community’s agreement to the legal action, the Court will be able to issue an interim order for an immediate stop to the banned activity, with failure to comply incurring a charge of civil disobedience.
The Court will also be able to adopt as many provisional measures as deemed necessary to ensure compliance with the cessation order. The legal action will be taken against the owner and, as applicable, against the occupant of the dwelling or commercial premises.
If the Court upholds the complaint, it can also, in addition to ordering the cessation of the banned activity and any compensation deriving, remove the owner’s right to use the property for a period of not more than three years, depending on the severity of the offence and the detriment caused to the community. Where the offender is not the owner, the sentence can declare null and void any rights of occupancy and immediate eviction of the tenant.
At this point it is worth considering whether this procedure could be used in those cases of a residential complex where holiday-letting is explicitly forbidden but where an owner is renting to tourists, with the consequent disturbance for other residents.
In my opinion, the answer must be yes, because it is evident that putting up tourists could disturb resident neighbours given that the property is let to a number of occupants throughout the year for holiday and not residential use. Clearly, the continuous stay and movement of different people coming on holiday each week in a dwelling can disturb the peace and rest of other resident neighbours.
Moreover, the other owners in a community do not have to put up with an owner using his/her property for commercial ends that are not provided for in the community Statutes.
To deal with these inconvenient situations, Canarian legislation, in the regulation of private holiday lets (Viviendas Vacacionales), sets as an absolute prerequisite that such tourist use must be accepted by all residents, and moreover that it is not explicitly prohibited by the community Statutes since where such a ban does exist, the licence for tourism use will not be granted.