What went unsaid in the first lawsuit can no longer be pleaded in the second. Res judicata and preclusion against the reopening of an owners' association resolution
A company that owned a flat sought to argue for a second time, nine years on, whether the by-law prohibition on tourist use in its building applied to it. It tried with new packaging, challenging what had been said at a later general meeting and relying on an administrative-court judgment it had obtained in the meantime. The court upheld the plea of res judicata raised by this Barcelona law firm in defence of the owners' association, ordered the dismissal of the proceedings at the pre-trial hearing itself and awarded costs against the claimant. The lawsuit ended without a trial.
1.The starting point, a by-law prohibition from 2016
The company bought the flat in 2015. A year later, on 6 June 2016, the owners' general meeting resolved to amend the by-laws so as to prohibit the privately owned units from being used as tourist apartments, hotels, guest houses, residences, boarding houses, hostels or lettings of less than thirty-one days. The owner voted against. Six weeks later, on 21 July 2016, it filed with the city council its application to operate the flat as tourist accommodation. It did not inform the owners' association.
In September of that same year it brought a claim against the owners' association. It asked the court to declare the resolution amending the by-laws null and void and, in the alternative, to declare that the resolution could not affect the properties whose owners had expressly opposed it, because that would amount to applying it retroactively without the owner's consent. The amendment to the by-laws was registered at the “Registro de la Propiedad”, the Land Registry, in February 2017.
2.The first lawsuit and what went unsaid in it
That claim, and its later extension, have a feature that would prove decisive almost a decade later. At no point did the owner say that it was already using its flat for tourist letting, or that it intended to do so. It did not mention the licence application filed the month before. It produced no document on the matter. It said nothing at the pre-trial hearing or at trial.
The first-instance judgment, of September 2017, dismissed the claim, and it did so with reasoning that deserves careful reading because it explains everything that came afterwards. The court recalled that the resolutions of the general meeting are mandatory and bind all owners, including dissenting owners, and that owners may not carry on in the privately owned units the activities that the by-laws expressly prohibit. The amendment to the by-laws, says the judgment, would be meaningless if it could not be enforced precisely against the person who opposed it.
It then turned to the non-retroactivity argument. The doctrine relied on by the owner, drawn from the “Tribunal Superior de Justicia de Cataluña”, the High Court of Justice of Catalonia, applies where the owner was already actually carrying on the activity, or held all the authorisations required for it, at the time the prohibition was adopted. The position of someone who is using their flat for a given purpose when the by-laws are amended cannot be equated with that of someone who is not carrying on that use and who is therefore not directly affected. In this case, the court concluded, it has not been alleged that the claimant is using its flat for tourist purposes, nor does the record show that it is. Read that sentence again. The claim was dismissed precisely because the fact that might have sustained it, had it been alleged and proven, was never alleged.
A clarification should be added on the registration argument, because it is often misunderstood. The amendment to the by-laws did not reach the Land Registry until February 2017, and the owner had bought in 2015. It is true that an unregistered restriction cannot be enforced against someone who acquired the property without it appearing on the Register. But that rule protects the third-party purchaser, not someone who took part in the general meeting that adopted it. The claimant attended that meeting, voted against and knew of the resolution from day one. As far as it was concerned, the prohibition was not a hidden encumbrance but a decision of the owners' association by which it was bound like any other owner, dissenting owners included.
3.The evidence that came too late
The owner appealed. And it was then, for the first time, that it tried to introduce what it had kept quiet throughout the first-instance proceedings. It pleaded the administrative licence application filed in July 2016 and produced documents on the engagement of a company to operate the flat.
The “Audiencia Provincial”, the provincial appeal court, refused to admit those documents as out of time. That decision was not challenged. In its judgment of September 2018, the court placed it clearly on record, the documents are to be treated as not having been produced and cannot be examined or assessed.
It dismissed the appeal, upheld the judgment and ordered the appellant to pay the costs of the appeal. On the merits it added something that, seen from today, reads almost like a warning. The appellant had neither informed the owners' association of its intention to put the flat to tourist use before the resolution was adopted, nor had it begun the activity, so it could not claim any prejudice. And it would thereafter be in the position of someone with full knowledge of the resolution prohibiting that use. That decision became final.
4.The administrative licence and the return
Meanwhile, the owner kept a separate front open. It was litigating against the city council, before the “jurisdicción contencioso-administrativa”, the administrative courts, over the licence it had applied for in 2016. That lawsuit ended in October 2023 with a judgment recognising its right to carry on the activity with effect from the date of its application. The judgment was corrected in November of that year and declared final in January 2024.
With that instrument in hand, the owner wrote to the owners' association announcing that it would begin tourist letting. The association replied by “burofax”, a certified letter with proof of content, in April 2024, reminding it that the question had already been settled by the courts between the two of them and demanding that it refrain. There was no reply. At the general meeting of June 2024 it was recorded in the minutes that the by-laws applied to it in full and that legal action would be taken against any conduct contrary to them.
That entry in the minutes was the foothold for the second lawsuit. In 2025, the owner brought a new claim challenging it.
5.Our position
The defence was built on three ideas, ordered from the most to the least ambitious.
First, substantive res judicata and preclusion of facts. Article 222 of the “Ley de Enjuiciamiento Civil” —the LEC, Spain's Civil Procedure Act— rules out fresh proceedings where there is a final judgment, whether it upheld or dismissed the claim. And Article 400 requires the claimant to put forward in the claim all the facts and legal grounds that are known or may be invoked at the time it is filed, and does not allow them to be held back for later proceedings. Its second paragraph closes the system, for the purposes of lis pendens and res judicata; the facts and grounds put forward in one lawsuit will be deemed the same as those pleaded in an earlier one if they could have been pleaded there. Everything the owner was bringing to the second lawsuit predated the first. The licence application of July 2016, the preparatory steps, the engagement of an operating company. None of it was a new fact. It was exactly the same material that the provincial appeal court had refused to admit as out of time in 2018, now presented as if the passage of time had turned it into something else.
Second, the positive effect of res judicata. In the alternative, in case the court took the view that challenging a later set of minutes opened up a different subject matter, res judicata would still operate in its positive or prejudicial function, which requires final court decisions to be respected in later related proceedings. In other words, even if the claim were admitted, the court would be bound by what had already been decided and could not examine facts that were omitted when they ought to have been pleaded.
Third, there was no resolution to challenge. No resolution whatsoever was adopted at the 2024 general meeting. What was recorded was the co-owners' view on the continued force of a set of by-laws and on their intention to enforce them. However many times a matter is recalled at a general meeting, recalling it does not create a challengeable act, still less when what is recalled is precisely the content of a final court decision. The very subject matter of the action to challenge a resolution was therefore missing.
6.What the court decided
The plea was decided orally at the pre-trial hearing and subsequently recorded in an order, in accordance with Article 210 of the LEC. The court ordered the dismissal of the proceedings, upholding the plea of res judicata, with costs against the claimant. The reasoning of the order is direct. The preclusion under Article 400 prevents facts and grounds that could already have been pleaded in the earlier lawsuit from being used in the new one. And, looking beyond the packaging, it concludes that what was being challenged was not simply a free-standing resolution of 2024 but an attempt to reopen the by-law restriction adopted in 2016, because the relief sought did not consist merely in annulling that entry but also in obtaining a declaration that the prohibition was unenforceable against the claimant and the possibility of operating the flat for tourist use.
The facts on which that relief was based, says the order, already existed before the first lawsuit, were known to the claimant and could well have formed part of that claim. And the later administrative-court judgment does not open the door to an adjudication of these questions, which could well have been argued in the first proceedings. Hence the conclusion, those facts are to be treated as the same for the purposes of res judicata, and the proceedings are dismissed.
7.Why it matters
The decision has a value that goes beyond the case, and it deserves to be stated clearly. Res judicata protects the stability of owners' association resolutions. Once the validity of a by-law prohibition has been confirmed by the courts, the owner cannot argue it all over again by presenting the same facts from a different angle. If it were enough to wait for a later general meeting, take note of any mention of the matter and challenge it, no owners' association would ever have certainty about its own by-laws.
What was not pleaded at the time can no longer be pleaded. Anyone challenging a resolution must put forward all their arguments from the outset, including the possibility that the prohibition does not apply to their flat because they were already carrying on the activity. The preclusion under Article 400 is not a procedural trap, it is the counterpart of the right to a single set of proceedings on the same subject matter.
The administrative authorisation and the relationship with the owners' association are on different planes. Holding a tourist licence does not by itself neutralise a by-law prohibition confirmed by the civil courts. The city council decides whether the activity may be carried on from a planning and administrative point of view, and its ruling binds the city council. The owners' association, within the margin the law allows it, decides which uses it permits in the privately owned units of its building, and that decision is argued before the civil courts with the association as a party. They are debates with different parties, a different subject matter and a different jurisdiction.
This matters a great deal in practice, because the situation recurs. An owner obtains or recovers a tourist licence after years of administrative procedure and turns up before the owners' association convinced that that piece of paper settles every argument. It does not. Winning the first debate does not settle the second, and an administrative-court judgment handed down years later does not reopen a civil lawsuit already decided between parties other than those of that procedure.
And there is a final, more practical lesson. A well-constructed procedural defence can dispose of the lawsuit at the pre-trial hearing, without evidence, without a trial and without a judgment on the merits, with the resulting saving of time and expense for the owners' association and with costs awarded against the other side. Getting there requires something that is not always done, reconstructing the earlier lawsuit document by document and showing, with the case file itself in hand, that what is presented today as new is the same thing that was kept quiet at the time.
From this follows a simple recommendation for any owners' association that has been through a lawsuit of this kind. The case file of the earlier proceedings is not filed away, it is kept complete, with the claim, its extension, the judgments of both instances and, above all, the decisions on the admission of evidence, which are what show what was sought to be pleaded and when. And every warning sent to the owner should be documented in writing, because that is what later makes it possible to explain to the court why the association merely recalled a final decision rather than adopting a new resolution.
Because the outcome of this matter was not decided in 2026. It was decided in 2016, when the claimant chose not to say in its claim that it had already applied for the licence.
