In a community, a three-fifths majority of votes and quotas is agreed to prohibit the exercise of the activity of apartments or tourist rentals. One of the owners files a lawsuit requesting the annulment of said agreement.
There is debate as to whether, when the Law allows the adoption by that majority of agreements to limit or condition the exercise of this activity, it allows the total prohibition of such a purpose.
The Court emphasizes that in the interpretation of the rule, the spirit and intended purpose of it must prevail, that is, why and for what purpose it was dictated over the literal or grammatical.
According to the definition of limitation made by the RAE, the possibility of limitation legally conferred to the communities of owners on the activity of tourist apartments in the property, can also suppose its complete prohibition, which would be the maximum limit. On the other hand, synonymous with limit is also to condition. It makes no sense that when the legislator uses both terms, he does so in a redundant way, and not to expand the possibilities offered.
As regards the intended purpose of the laws, the legislator’s will is inclined to favour residential leasing over tourist rentals, which are intended to be restricted in order to increase the housing stock for sale and lease. Conditioning or restricting the activity does not solve the problem of difficulties in accessing housing to the same extent as prohibiting it.
It also argues that attributing this power to the owners is based on the consideration that the development of an activity of this type can generate inconveniences and damages, which are evident in social reality, especially in areas with a higher incidence of tourism, where leisure time is difficult to reconcile with the rest of the occupants of homes for residential purposes. In the social function of property, it is a legitimate aspiration of a community of owners to avoid potential inconveniences for the rest of the neighbors and possible conflicts of coexistence between the owners and the indeterminate and occasional users of one or more of the apartments. Our professionals can provide you with adequate advice for the proper functioning of your community and the adoption of agreements in accordance with regulatory requirements.
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