Posted by: Carlos Tome & filed under Condominium.

Certain owner owns an apartment intended for housing that is affecting him to the local accommodation for tourists. By deliberation of the majority of the condomins of the building in which the rented apartment is located, a standard has been added to the Condominium Regulation prohibiting condominals from affecting their fractions. the “tourist/hotel/local accommodation utility”. Is it legitimate, on the basis of this provision, to prohibit the condomino in question from continuing to affect your apartment to the 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 to discipline the use, enjoyment and conservation of both the common parts and the autonomous fractions may also form part of the constituent title of horizontal property. In any case, the regulation, by its own definition, has a regulatory nature, of pure discipline, of a regime which has been defined in general terms in the constitutional title and in the law but which needs to be adjusted to the specific case and to the particularities of the necessity and will of condominos. Except where there is agreement of the affected condomino, the Regulation may not go beyond that scope and directly interfere with the material content of the right of each of the condominos on its fraction, reducing or excluding some of its valences. If the condomius acquires its fraction and is authorized by the title and the license of use to be allocated for a certain purpose, the condomius cannot subsequently, against its will, oppose a decision by the condomian assembly which, in order to discipline the use of the fraction, imports into the practice a material restriction of the content of its exclusive right of ownership over the fraction belonging to it. This is the only way to understand, moreover, the provisions of Article 1422 of the Civil Code which prevent condominos from giving their fraction a different use of the purpose for which it is intended: the more that the other condominos can demand is that the purpose for which the fraction is intended is respected, they cannot impose an amendment themselves, modification or restriction of such use provided that it complies with the authorisation contained in the title of constitution of the horizontal property delimiting the content of the actual right transmitted to the acquirer of the fraction. This will be the case, for example, for the regulation to establish that housing fractions cannot be rented or that they cannot be rented to tourists, students or persons of a particular ethnicity, race or nationality. When this happens, the provisions of the regulation are simply ineffective in relation to the affected condomino. Having said that, and in conclusion, the amendment of the Condominium Regulation cannot be contrary to the condolmino in question which voted against the deliberation of the condominium which seeks to prevent it from affecting its fraction to the local accommodation for tourists.

This post is also available in: pt-ptPortuguês deDeutsch frFrançais