The percentage of disputes within Spain’s communities of owners that find their way to the courts is substantial, to the extent that they now make up a significant share of Courts case load. The nature of these disputes ranges from the rather boring (from a practicing lawyer’s point of view) money claim to the more exciting topic of activities that may or may not be allowed within the urbanization or block, as well as how owners’ rights are exercised in respect to others. The variety of scenarios and circumstances and the corresponding case law mean that lawyers not always have straight answers and therefore, a case by case analysis is required.
So which activities are deemed illegal?
In principle, those forbidden expressly by the statutes; such prohibition can be upheld so far as they are not against the laws and, generally, the supreme of all laws, the Constitution. As a rule of thumb, the following are illegal: activities deemed cumbersome, immoral, obnoxious, unhealthy, dangerous or contrary to morals.
I can mention a few real cases, such as a kindergarten or school, a bar, a laboratory, a massage parlour, a poker room, a druggy that has the home and himself in a total state of decay, a manufacturer handling gunpowder, a dog or cat breeding business.
A medical practice was considered to be acceptable by one ruling, whereas a traumatologist was banned from opening his business due to courts deeming the activity as cumbersome given the high circulation of clientele.
One other court rulings deemed acceptable that a taxidermist (yes, he who is an expert in the art or operation of preparing, stuffing, and mounting the skins of dead animals for exhibition in a lifelike state) got his license. And another one also found in favour of a radiologist’s practice.
Finally, another Judge deemed that insurance brokerage was a noisy activity and thus banned it because the clients used the lift continuously…
And what about noisy or cumbersome neighbours, how is that dealt with?
This is a tricky one as what is right for someone may be wrong for another and where in doubt, a dispute is bound to arise: as an example, excessive noises, invasions of privacy, improper use of the communal areas and generally, any behaviour susceptible of interfering with someone else’s right to a peaceful living.
Courts know that the difficulty to deal with such dispute means they have to strike a fine balance between diverse, and occasionally opposing, rights, and to that extent they have come up with the Theory of Due Tolerance, which marks the boundary lines of our behaviour in respect to that of others. This theory encapsulates 5 principles:
- Reciprocity: if for example other neighbours do the same unopposed, we may infer it is correct to follow suit.
- Just or fair balance: if diverse behaviours are not on a collision path, they should be allowed to exist.
- Estoppel: it stops one going against one’s owns actions.
- Prolonged consent: it seems an obvious consequence that a certain behaviour that has been unopposed for a long period of time should be acceptable by who consents.
- Permissiveness: it mixes consent with the notion of social acceptability.