Posted by: Carlos Tome & filed under Condominium.

A certain owner owns an apartment for habitation that is allocating it to local accommodation for tourists. By decision of the majority of the owners of the building in which the aforementioned apartment is located, a rule has been added to the Condominium Regulation prohibiting the owners from allocating their fractions to the “tourist/hotel/local accommodation use”. Is it legitimate, based on this provision, to prohibit the owner in question from continuing to allocate their apartment to local accommodation for tourists?

The condominium regulation is the instrument aimed at disciplining the use, enjoyment and conservation of the common parts of the building. The law also provides that a condominium regulation governing the use, enjoyment and conservation of both the common parts and the autonomous fractions may also form part of the constitutive title of horizontal property. In any case, the regulation, by its own definition, has a regulatory nature, of pure discipline of a regime that was defined in general terms in the constitutive title and in the law, but that needs to be adjusted to the specific case and to the particularities of the needs and will of the owners.

Unless there is an agreement with the affected owner, the Regulation cannot go beyond that scope and directly interfere with the material content of the right of each owner of the property over their fraction, reducing it or excluding some of its benefits. If the owner acquires their fraction and the same is authorized by the title and the habitation license to be allocated for a certain purpose, the owner cannot subsequently, against their will, be opposed  by a decision by the condominium assembly a decision that to discipline the use of the fraction imports in practice a material restriction of the content of their exclusive right of ownership over the fraction belonging to them.

In fact, this is the only way to understand the provisions of Article 1422 of the Civil Code which prevents the owners from giving their fraction a different use from the purpose for which it is intended: the most that the other owners can demand is that the purpose for which the fraction is intended is respected, they cannot impose an amendment themselves an alteration, modification or restriction of that use provided that it complies with the authorization contained in the title of constitution of the horizontal property that delimits the content of the real right transmitted to the purchaser of the fraction. This will be the case, for example, for the regulation to establish that autonomous fractions for habitation cannot be rented or that they cannot be rented to tourists, students or people of a certain ethnicity, race or nationality. When this happens, the provisions of the regulation are simply ineffective in relation to the affected owner. That said, and in conclusion, the amendment of the Condominium Regulation cannot be opposed to the owner in question who voted against the deliberation of the condominium that intends to prevent them from allocating their fraction to local accommodation for tourists.

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