The Supreme Court established in a ruling that a community of owners can prohibit tourist apartments in a building or subdivision provided that the agreement is concluded with at least three-fifths of all owners and the participation fee. The judges, who in previous resolutions had already approved that owners could prohibit this activity in their community, explain that it is necessary to gather a qualified majority and reject the appeals of several companies dedicated to the operation of these tourist apartments in Marbella and Madrid.
The judges studied the resources of several homeowner communities. One of them in Marbella, which met in the summer of 2019 to discuss what to do with tourist apartments that were causing inconvenience to neighbors. “The noise, the destruction, the theft, the smell of marijuana, urine and stains,” said the president of the community, in addition to considering it an “abuse” that the owners of these houses exploit them commercially in a residential property. The deal to ban tourist apartments was passed with 48 votes in favor and three against, but two companies that own six tourist apartments took the matter to court.
The Supreme Court confirms, as in previous judgments, that communities of owners have the right to legally prohibit the presence of tourist apartments, because it is a commercial activity that can be prohibited. “Preventing use for tourist rental purposes constitutes a prohibition, which is legitimate,” they explain in this new resolution. But they add the necessary majority that a community of owners needs to take this action: three-fifths of the total owners.
The judges underline the “social reality” in areas with a high tourist incidence, areas “in which leisure activities are difficult to reconcile with the rest of the occupants of the accommodation”, and establish that they can accept the restrictive agreement “provided that they have a qualified majority of 3/5 of the number of owners and the participation quotas imposed by law, which respects the rule of proportionality of the measure in relation to conflicting interests.
Requiring a three-fifths majority to proceed with these limitations and prohibitions is proportionate and the alternative, submitting it to the unanimity of the owners, would be “as much to make it impossible, since a vote against the owner of the apartment in which he is planned would be sufficient. » carry out the activity to prevent it.
