Communal pool

I have two questions concerning the communal swimming pool on our urbanisation.

1. If the community so votes, do we have the right to prevent anyone smoking within the fenced pool area and post notices to that effect?

2.  Again, if the community so votes, do we have the right to prevent renters bringing in non-resident guests whilst retaining the rights of owners to have guests?

Please have answers below in bold green ( same text of your email):

I have two questions concerning the communal swimming pool on our urbanisation.

1. If the community so votes, do we have the right to prevent anyone smoking within the fenced pool area and post notices to that effect? )I would say yes as a matter of the internal rules regulation.

2.  Again, if the community so votes, do we have the right to prevent renters bringing in non-resident guests whilst retaining the rights of owners to have guests? I would say not as far as they follow an adequate licing togehther behaviour.

Thank you, Maria.

Does it follow that if renters conduct themseles in a good manner, that they must have the same rights as owners concerning use of all communal facilities?

Plexx:

Yes, unless otherwise is agreed by parties in the rental contract.

Those limits need to be included in the publicity for the renting of the house.

Hope this helps.

Maria

That's fine. So it seems that the community may be able to place restrictions on renters, but that this then has to be communicated to them before they agree a rental contract.

Thanks again, Maria.

what is the point of having any rules? The administrator of my development tells me that rules made by the residents even voted on and accepted at the AGM are uninforceable.

Johnspc

Section 7 (2) of the Act provides

(2) The owner and the occupant of the flat or premises  shall not carry out in such flat or premises, or in the rest of the building, any activities which are not permitted by the Articles , or which may cause damage to the estate or contravene the general regulations concerning nuisance, unhealthy, noxious, hazardous or unlawful activities.

The president of the commonhold association, on his own initiative or at the request of any owner or occupant shall request the immediate ceasing of any of the activities banned by this section under warning of appropriate court action.

If the offender persists in his/her conduct, the president, subject to the authority of the Owner’s Committee, duly convened for this purpose, may undertake a court injunction procedure, which, insofar as not expressly provided for in this section, shall be handled by ordinary procedure.

Once the action is brought, along with the accreditation of formal notification to the offender and the certification of the resolution adopted by the Owners’ Committee, the court may order as a precautionary measure the immediate cessation of the prohibited activity, under admonition of incurring an offence of contempt.

Furthermore, the judge may adopt any provisional measures necessary to ensure the cessation order. The action must be brought against the proprietor and, if fitting, against the occupant.

If the judgement were for the claimant, it may decree, besides definitive cessation of the prohibited activity and the awarding of damages as may correspond, the forfeiting of the defendant’s right to use the flat or premises for no more than three years, depending on the seriousness of the infringement and mischief caused to the commonhold. If the infringer were not the owner, the judgement may definitely terminate the offender’s rights to the flat or premises and order his immediate eviction.

The forfeiting of the defendant’s right to use the property is the last resource to prevent nuisance and could only be imposed for those situations which are especially serious for a maximum of 3 years.

Among others, the CA ruling in Asturias 12-06-2006 deprived the use of a flat because the commonholder was throwing excrements, urines and oil through the window. The CA ruling in Madrid 20-05-2003 deprived the use of a flat during 2 years because of noise and other nuisances. The same approach was taken by the CA ruling in Pontevedra 27-07-2004 and the CA ruling in Badajoz 07-05-2007, in the latter case three months because of music on full volume.

The Extinction of lease agreements is indicated only in the case of when a non-owner is causing the nuisance. That non-owner could be a tenant or usufructuary amongst others.

The judgement shall declare the agreement terminated and subsequently eviction.

The CA ruling in Valladolid 12-09-2005 extinguished a lease agreement of a mentally ill person because of disruptions caused to commonholders

Quite often non-compliance of internal rules can be due to a simple misunderstanding or ignorance of the rule being broken.  In a lot of cases, many rule breakers did not even know there was a rule for what they were or were not doing.

For this reason, it is always best to begin with a polite letter from the president outlining the breach and seeking compliance with the relevant rule.  Usually this will be enough for some offenders once they realise they have actually done the wrong thing.

However, there are other more 'selfish' types who really could not care less and it is this minority that needs 'stronger' forms of persuasion.  Luckily there are a number of avenues open to those responsible for bringing the wayward into line however, it is not always an easy or smooth path.

Not only commonholders are bound by the internal rules. These rules will be equally binding to owners’ tenants and guests, letting and managing agents, all contractors and anyone who works for any owner or for the Community. As such owners will be held accountable for the behaviour of any parties managing, letting or working on their property. All unit-holders therefore must ensure that these parties are made aware of and comply with the internal rules.

What is the most important question in this matter is to find out what would be the available measures for the Owners’ Committee in order to achieve the thorough observance of the internal rules.

Although the OC is not a public power it is possible to impose fines to those owners who systematically fail to fulfil internal rules. There is case-law admitting that the Owners’ Committee through a simple resolution (passed by majority, not unanimity) may impose sanctions (in order to sanction commonholders, previously the OC has to decide by resolution to do so and then pass a resolution in which a concrete sanction is imposed. Administrators are not entitled to sanction) to commonholders (CA ruling in Barcelona 02-06-1987). If the owner refused to pay the fine it would be possible to charge it as a part of his usual monthly fee so that he would be in default, and for this reason treated as a defaulter. It is submitted that internal rules may impose interests to defaulting commonholders in case of late payment of service fees.

Anyway, in order to give the defence rights, those fined owners could challenge in Court those resolutions in which a penalty is imposed.

Plexx:

That's fine. So it seems that the community may be able to place restrictions on renters, but that this then has to be communicated to them before they agree a rental contract.

It is not the community but the owner/renter who can agree on restrictions regarding the usage of the  private property as a matter of free negotiation.

And now: let´s set an example for the publicity of those restrictions:

Say the development has right to use a gym but the owner wants to keep those rights during the renting period. If the development is known as having such gym rights, and the owner wants to restrict them, he needs to show that limit in the publicity ( if he does publicity). If not, he will be obligued to provide the gym rights to the renter.

It is about consumers protection and publicity. Nothing to do with the rights of the Community of owners.

Thanks again, Maria.

 Hi Spanishsolicitor,

Thanks for the detailed answer, but in another topic you said that there was no legal possibility to deny entrance to the pool. So what are the exact limitations on sanctions? Financial penalties are allowed, but denial of the use of community facilities is not?

That's about right Max !!....anoying and disappointing tho it may be, you cannot stop anyone from using the Community facilities even if they do not pay thier Community fees.

Hi Max

Hi

As this thread is about community pools, I am putting the question here.

I have bought a flat that was built in 1988.

There were five small communities built at the same time.

There was also a swimming pool built for the use of the 5 communities.

There is no mention of the pool on my escritura.

My community has lost or never had a constitution.

The story is that when the communities were being bult one of the early purchasers refused to have anything to do with the pool so it was struck from their escritura and all subsequent/other escrituras.

It is also reported that the builder gave a free licence to a woman to run the cafe by the pool as long as she looked after the pool. Her family continue to run the cafe and clean the pool.

How would I establish the legal position concerning the pool?

Is there any way we can assert any rights after all this time?

Thanks

Ted Pillinger