Question: I am the owner of a loft in a large property complex. The complex has two swimming pools, storage rooms, green spaces, a fitness centre and an underground car park with over 100 parking spaces. As these could be purchased separately from the flats, many parking spaces are owned by people who do not own flats. However, they still use the pools and the equipment room. Aren’t such facilities intended solely for the owners of residential space? Can we therefore deny the owners of the parking spaces access to these facilities?

Answer: In order to answer your question, we would need to take a look at the declaration of division and the community rules. There are often several communities existing in parallel, which in turn form a higher-level community. For example, the underground car park could form a sub-community. In such cases, the community elements of the residential community would not simultaneously be the common property of the community of parking space owners. If the elements described belong to the association of communities, it would be necessary to check whether a special regulation regarding their use has been agreed upon.

If the parking space owner is obliged to contribute proportionally to the maintenance of the community facilities, they should also be allowed to use them.

In the absence of specific regulations and if the flats and parking spaces actually belong directly to a single community, I would personally take the view that all owners are entitled to use the pools and the fitness room. It is irrelevant whether they are only parking space owners or also flat owners. I base my assessment on the fact that every owner has co-ownership of the communal elements in proportion to their share. If they are also forced to contribute proportionally to the maintenance of the communal facilities, they should also be allowed to use them.

However, as a restriction to my personal assessment, it should be noted that the Spanish court Tribunal Supremo ruled exactly the opposite in its judgment of 2 February 2006. Here, the view was taken that the community was entitled to deny the owner of a garage the use of the swimming pool because, ‘out of pure logic’, it was obviously intended only for the apartment owners. For the reasons described above, however, I consider this decision to be questionable.

However, the Spanish Supreme Court ruled exactly the opposite in its judgment of 2 February 2006

As a caveat to my personal assessment, it should be noted that the Spanish Supreme Court (Tribunal Supremo) ruled exactly the opposite in its judgment of 2 February 2006. Here, the view was taken that the community was entitled to deny the owner of a garage the use of the swimming pool because, ‘by pure logic’, it was obviously intended only for the apartment owners. For the reasons described above, however, I consider this decision to be questionable.

Based on regional law, I would personally come to the same conclusion as described above, but would like to highlight an important special feature here. The Tribunal Supremo is not the court of last instance for interpreting regional law; that role falls to the Tribunal Superior de Justicia de Cataluña. And there, as luck would have it, the ruling of 20 July 2015 differed from that of the Tribunal Supremo. According to the Catalan court, garage owners are also allowed to use the pools. I therefore consider my assessment described above to be appropriate and would say that it is shared by the highest court in Catalonia, but that in the rest of Spain – at least at this point in time – it runs counter to the opinion of the Tribunal Supremo.

Since summer 2015, we have been covering topics related to Spanish law in the bilingual magazine ‘La Guía’. Both the published articles and the answers to readers’ questions are reproduced in full in German and Spanish.

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