Tourist apartments are a source of many conflicts in communities of owners as they represent the continuous movement of people through a building for its occupants, as well as the insecurity generated by the access of all types of strangers at all hours of the day and night, without the community of owners being able to exercise any control.
Moreover, since the emergence of Covid-19, illegal parties have been held in some of these properties, bypassing restrictions on gatherings established to try to control the spread of coronavirus and increasing the chance of contagion.
In this context, the question arises as to whether neighbours have a legal obligation to tolerate the presence of tourist accommodation in their complex.
It is true that articles 33 of the Constitution and 348 of the Civil Code confer on owners the right freely to enjoy and dispose of their property, but it is also true that those rights are limited by the constraints established in the laws and the case law that interprets them.The issue therefore is which interest prevails: that of the owner to use the property as they wish or that of their fellow owners.
We have to bear in mind that article 7-2 of the Horizontal Property Law prohibits activities that cause other residents nuisance, and article 9-1-a) of the same law requires that the property be put to an appropriate use.
In order to determine where tourist rentals are not permitted, certain factors must be taken into account, such as a prohibition in the community’s Statutes, or where the activity damages the property, or if municipal regulations are contravened.
In this regard, the Constitutional Court ruling of 8 March 1999 stipulated that nuisance comprises not only intolerable disturbance but any activity which exceeds what is socially acceptable due to its impact, understood as the minimum respect for the coexistence of the occupants of the property.
The Supreme Court clarified that, although the general criterion is that the prohibition of or limit to the exercise of rights should be exceptional, this does not mean that such prohibitions and limitations cannot be applied when circumstances arise that result in an undermining of the rights of all those who comprise the community.
It is therefore vitally important to establish a ban of this type of activity in the articles of association of the community and to approve this measure in a meeting called specifically for this purpose, adopting the corresponding agreement that tourist rentals are not permitted.
So, in order to evaluate these situations, normal use and tolerability of activities carried out must be considered taking into account the conditions of the property and its nature on the basis of good faith in such a manner that it would not be tourist use itself that violated the law but the serious and continuous uncivil conduct, such as continuous misuse of lifts, repeated noise, night-time parties, acts of vandalism, rubbish left about, or theft.