Horizontal Property
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Prohibition of tourist accommodations due to a statutory limitation
A community of property owners sued two neighbors because they were using their apartment as a tourist accommodation . The community argued that this clashed with a rule in their statutes , which allows floors to be allocated "for housing of the owner or tenant" expressly prohibits other uses, including "using the apartments and premises (...) as inns." Therefore, the community filed a cease and desist action (Horizontal Property Law art. 7.2) to declare that the statutes were being violated and to order the definitive cessation of that activity.
The defendants did not deny the facts since the apartment had been registered as a tourist accommodation since 2018 in the tourist registry of the Community of Madrid, and this use had been discussed in a meeting. Nevertheless, they argued that they would continue to rent it to tourists because, according to them, a tourist accommodation is not the same as an "inn ". ”.
Initially, the court ruled in their favor by understanding that the statutes did not mention tourist apartments and that "lodging" could not be equated to tourist use. It also emphasized that it had not been proven that the activity caused real problems (neighbor complaints, police interventions, etc.).
However, the community appealed, and the Provincial Court of Madrid changed the outcome when it stated that there was indeed a violation of the statutory prohibition and ordered the "lodging activity" that it saw in that tourist rental to cease, relying on regional regulations and the fact that it was accommodation for a price, temporary, and without intention of permanence.
Finally, the Supreme Court (TS) dismisses the owners' appeal and confirms the prohibition . The TS reminds that limitations on use in horizontal property must be explicit and are interpreted restrictively, but in this case there was indeed a clear clause ("lodging") and, due to its meaning (transient accommodation open to the public and advertised on platforms), it fits with tourist rental . It also mentions that tourist use is excluded from the lease of housing according to the LAU art. 5.
If you find yourself in a similar situation or have any controversy related to a tourist or vacation rental, our professionals can analyze your case and take the most appropriate actions to defend your interests-
Elevator maintenance
Nullity of duration clauses and excessive notice in successive contracts This case deals with a typical contract for “preventive maintenance” of elevators, which are not fulfilled in a single day, but are provided month by month (what is called in law a successive contract). A maintenance company sued a community of owners because it decided to terminate the contract before the agreed term expired. The company claimed two things, on one hand, that unpaid invoices were paid; and, on the other, compensation for “breaking” the contract early. The conflict revolved around two clauses of the contract where one set a duration of 3 years and the other required a notice of 180 days (six months) in advance if one wanted to terminate the contract. The community argued that these conditions were abusive in the case of a consumer (in this case, the community itself). In the first instance, the court ruled in favor of the company, ordering the community to pay both the compensation for early termination and the outstanding invoices (in addition to interest and costs). However, on appeal, the Provincial Court of Málaga changed the criterion, declaring the 3-year duration clause and the 180-day notice clause null and abusive. What is the practical consequence? If those clauses are invalid, the company cannot rely on them to demand a penalty or compensation for having terminated the contract early. Nevertheless, the community must pay what it actually owed, the outstanding invoices for services already rendered. The Supreme Court confirmed this outcome, the duration and notice clauses are considered null, no compensation is due for ending the contract early, and only unpaid invoices are owed.
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Urban leases
Does a reversible work by the tenant give the owner the right to terminate the contract?
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Urban Leases
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