Prohibitions

Article 7.2 LPH stipulates that neither the owner nor the occupant or user of the separately owned element (regardless of whether it is separately owned or part of the common elements) is permitted to carry out any actions that are prohibited by the Articles of Association or that would be detrimental to the property. Similarly, their actions must not violate the general provisions on disruptive, harmful, (environmentally) damaging, dangerous or prohibited activities. which actions or activities are undesirable and considered disruptive – it is irrelevant whether they are objectively dangerous or disruptive) and those which result in an actual, objective impairment of the property or third parties, or in other words, those which violate the relevant legal provisions for the protection against dangers and disturbances.

Activities prohibited by the statutes

The community may prohibit the exercise of certain activities or the performance of certain acts by means of the statutes. However, in order for these prohibitions to be effective against the bona fide purchaser of a separately owned property or third parties, they must be entered in the land register, as clarified in Article 5.3 LPH. The prohibitions must also be clear and unambiguous, as they are only open to narrow interpretation in order to protect the general rights of disposal of the owners.

In addition, the provisions of Articles 6.2 and 1255 of the Código Civil must be observed. According to these provisions, general freedom of contract is limited by law, morality and public order (as well as the rights of third parties). Even if the owners’ meeting is in principle free to amend the articles of association at will, provided that this is done unanimously in accordance with Article 17.6 LPH (or the absent owners do not object to the provisional decision of the owners present or represented within the 30-day period provided for by law in Article 17.8 LPH), arbitrary provisions or provisions that unjustifiably disadvantage individual owners or residents in an unjustified manner may be invalid. This would include, for example, a ban on the use of the communal swimming pool imposed on individual persons only, or a ban on operating a Chinese restaurant in the commercial premises while an Italian restaurant would be permitted.

Activities prohibited by the house rules

In addition to the articles of association, prohibitions and requirements may also be laid down in the house rules. However, the rules formulated therein, which may be adopted by a simple majority in accordance with Article 17.7 LPH, may only concern general aspects of communal living. This includes, for example, the hours of use of the communal swimming pool. In particular, the house rules may not restrict the rights of owners to their separate property. Despite the binding nature of the house rules (if they have been properly adopted and the underlying resolution has not been successfully challenged), it should be noted that: Since Article 7.2 LPH expressly refers only to violations of the articles of association and special laws, but does not take into account violations of the house rules, the possibility of an action for injunctive relief is generally rejected in the event of violations of the house rules. The house rules therefore do not offer the community sufficient protection in this respect, or, to put it another way, the provisions contained therein cannot be enforced by means of an action for an injunction in case of doubt.

Actions that violate the general provisions on disruptive, harmful, (environmentally) damaging, dangerous or prohibited activities

Even though there is now extensive special legislation that regulates areas such as immission control and the handling of hazardous substances in great detail, it is useful to take a look at Article 3 of Decree 2414/1961 of 30 November, which repealed the Regulation on nuisance activities, insalubres, nocivas y peligrosas, which contains several old legal definitions that clarify some of the legal terms contained in Article 7.2 LPH that are open to interpretation.

This results in the following definitions:

• Nuisance

Acts that generate noise or vibrations or emit smoke, gases, odours, mist or dust or release substances and thereby cause nuisance are considered disruptive.

• Actions harmful to health

Actions that release or emit substances that directly or indirectly harm human health are classified as harmful to health.

Even when referring to actions that are harmful to health, it should not be overlooked that failure to act can also cause a situation that is harmful to human health. Furthermore, the scope of protection should be extended with regard to residential property law, which is why it is not only the release or emission of chemical substances that should be taken into account. The wording of the definition cited here is more tailored to the operational environment and may make sense in relation to business premises located within the community. However, residents of the community may also engage in activities in their homes that are harmful to the health of their neighbours, which is why an overly technical interpretation should be avoided here and the focus of the interpretation should rather be placed on the protected interest of health.

• (environmentally) harmful activities

Acts that cause damage to diversity and richness for the same reasons (as just explained) as agriculture, forestry, livestock farming or fishing and fish farming are classified as (environmentally) harmful.

Based on the definition, it can be assumed that the protected interests described here are likely to be relevant in the field of residential property law only in exceptional cases. Essentially, this prohibition merely clarifies what is already apparent from other regulations. Potentially environmentally harmful activities of the extent described are fundamentally inappropriate in a residential building.

• Dangerous activities

  Dangerous activities are those involving the manufacture, handling, distribution or storage of substances that pose a risk of causing serious damage through explosion, combustion, radiation or similar means.

  As with environmentally harmful activities, these prohibited activities are likely to be of practical significance in the field of residential property law only in exceptional cases. Obviously, such dangerous activities have no place in a homeowners’ association. Unlike in the area of harmful, disruptive or unhealthy activities, there is only limited scope for interpretation issues. Prohibited (illegal) activities

  Decree 2414/1961 of 30 November does not describe the acts also prohibited in Article 7.2 LPH, which are classified as prohibited activities.

  However, the case group of prohibited activities does not cause any major difficulties in practical application. This simply includes all activities that are prohibited by legal provisions (regardless of their legal basis).

  Acts that are objectively detrimental to the property

  No actions may be carried out on the property that would be objectively detrimental to it (actividades [… ] que resulten dañosas para la finca). Occasionally, when classifying specific situations, it can be difficult to distinguish between objectively detrimental acts on the one hand and acts that are prohibited due to their harmful nature, dangerousness or general prohibition on the other.

  To make the distinction easier, the activities described in the previous section should be compared with the detrimental act. The scope of application in question can be determined most easily by negative differentiation.

  • Detrimental act ./. prohibited act

  A disadvantageous act can be defined as any activity which, although not prohibited because either the legal authorisations have been obtained or are not required, causes objective damage.

  • Disadvantageous act ./. harmful act

  While a detrimental act has negative effects on property, a harmful act refers to damage to human health. A harmful act is therefore understood to be an act that is detrimental to health.

  • Detrimental act ./. dangerous act

  While the detrimental act causes immediate damage (or at least certainly leads to it), in the case of a dangerous act, it is not initially foreseeable whether the danger created will actually result in damage or not.

  Examples of detrimental acts include cases in which machines or other objects, solely due to their weight, have a detrimental effect on the structure or stability of the property. A negative impact on the value of the property would also fall under this category (e.g. the installation of a mobile phone antenna, which, even if it is considered that the resulting damage to health can be ruled out according to current knowledge, has a negative impact on the value of the property due to the fears of a broad mass of sceptics).

  Overview:

  To avoid misunderstandings, here is a simplified overview of what is meant by the terms just described:

  • dañoso / detrimental (or harmful): creation of generally negative influences which, without being directly prohibited by law, result in damage.
  • molesto / disturbing: negative influences which cause inconvenience.
  • insalubre / (health) harmful: negative influence on human health.
  • nocivo / (environment) harmful: negative influence on the environment.
  • peligroso / dangerous: creation of a risk (fire, explosion, radiation, etc.).
  • prohibido / prohibited: illegal actions.

  Of course, individual actions may constitute multiple violations of Article 7.2 LPH. If pets are not adequately cared for and are therefore neglected in the owner’s home, neighbours may feel disturbed by noise or odours. This would already constitute potentially disruptive behaviour. In addition, inadequate hygiene conditions can also be hazardous to health. Similarly, dry cleaning can disturb neighbours and be hazardous to health if toxic fumes are not properly extracted.

  If an official permit is required to carry out an activity and this permit is not available, this constitutes an illegal activity within the meaning of Article 7.2 LPH according to prevailing opinion. On the other hand, obtaining the permit required to carry out the activity does not in itself mean that a violation of Article 7.2 LPH can be ruled out. Even the holder of an official permit may, in the course of carrying out a particular activity, cause a nuisance to the community, e.g. through noise or dirt, which is why the community may still be able to successfully assert its rights.

  If there are actions that are unlawful within the meaning of Article 7.2 LPH, it is incumbent upon the president (in accordance with Article 7.2.2 LPH) to request the disturber to refrain from causing them. As is clear from Article 7.2 LPH, he may do so either on his own initiative or at the request of an owner or occupant or user of a separately owned element. The request must threaten the disturber with legal action if he does not cease his activities. Ideally, the disturber should be given a deadline by which the disturbing activity must cease. Even if it is possible in some cases for the disturber to cease the disputed activity immediately (especially if the disturbance is merely attributable to behaviour), there are just as many situations in which more extensive measures are necessary (e.g. construction measures in the case of disturbing emissions) that require a certain amount of time to implement. Depending on the nature of the disturbance, a more or less generous deadline should therefore be set.

  In the event that the disturber continues their action, the owners’ meeting may decide to bring an action for an injunction and authorise the president to take all necessary measures to this end (appointment of a solicitor and legal representative).

  Action against the disturber

  The action for an injunction must be accompanied by a prior request to the infringer to cease activities that are contrary to Article 7.2 LPH. Article 7.2.4 LPH further stipulates that this request must be made in such a way that proof of receipt can be provided.

  It must therefore be proven that the infringer was unsuccessfully requested to cease the unlawful conduct prior to the action being brought. This proof is usually provided by means of a Burofax requerimiento notarial (notarised request) or by acknowledgement of receipt.

  Similarly, the decision of the owners’ meeting instructing the president to initiate legal action must be proven to the court. This is done by means of a certificate of this resolution issued by the secretary and countersigned by the president. The office of president does not in itself entitle the office holder to initiate legal proceedings. Rather, a corresponding resolution is required, as is already clear from the wording of Article 7.2.4 LPH.

  Judgment

  If the action is upheld, the perpetrator is prohibited from continuing the activity that contravenes Article 7.2 LPH. In addition, the court may also order the perpetrator to pay damages in accordance with Article 7.2.5 LPH and withdraw their right to use the separately owned property for a period of up to three years, depending on the severity of the negative effects caused by them and the disadvantages resulting therefrom. This also depends on the frequency and intensity of the disturbance and any permanent damage caused by it. If the perpetrator is not an owner but, for example, a tenant, the court may declare the tenancy terminated and order the tenant to vacate the property immediately (see Article 7.2.5 LPH). In order to avert a latent danger or damage to the community and its residents during the proceedings, the court may, at the request of the plaintiff and by way of interim relief, issue a temporary injunction (Articles 721 et seq., in particular Articles 726.2 and 727.7 Ley de Enjuiciamiento Civil) and order the perpetrator to immediately cease the relevant activity. Failure to comply with this order may constitute the offence of delito de desobediencia (a type of civil disobedience), which carries the corresponding penalties.