Can I convert my commercial premises into a home? What say does the owners' association have?

What the owners' association decides

• The change of use, by itself, does not need a resolution. The Catalan Civil Code allows the use of a flat or commercial premises to be changed without the consent of the general meeting, unless the by-laws expressly prohibit it.
• The prohibition must be a clause in the by-laws that prevents the change or limits the activities that can be carried on in the commercial premises. The fact that the deed describes the unit as a “local comercial” (commercial premises) is not, by itself, a prohibition.
• The owners' association can prohibit it for the future by amending the by-laws, with the votes of four-fifths of the owners, that is, 80 %, who must also hold four-fifths of the participation shares, the percentage each flat holds in the building. In principle, that prohibition does not affect anyone who had already made the change.
• The participation share of the commercial premises does not change. If the by-laws exempted them from certain costs, such as those of the lift or the staircase, it is debatable whether the exemption continues once they become a home.

In the rest of Spain, the “Tribunal Supremo”, Spain's Supreme Court, takes a similar approach and allows the change if the deed of constitution or the by-laws do not expressly prohibit it.

The works are a separate matter

The fact that the change of use does not need a resolution does not oblige the owners' association to accept any works on common parts that the home requires, such as these:

• Replacing the shop window or the metal shutter with windows, or making new openings in the façade or onto the courtyard.
• Running ducts or outlets through the common areas.

These works need a resolution of the general meeting and, if they change the façade or affect the structure, four-fifths of the owners and of the shares. The “Audiencia Provincial” of Barcelona, the provincial appeal court, has ordered the façade to be restored where openings were made without that resolution, even though there was a municipal permit. It has also ordered the demolition of what had been built on common areas. To connect to the mains water, electricity or gas networks, on the other hand, the law allows you to demand the essential passage through the common parts, paying for any damage caused.

What the town council requires

The fact that the owners' association cannot prevent the change does not give you the building permit. Conversely, the permit does not authorise you to touch the common parts without the owners' association's resolution. In Barcelona, the following are needed, among other things:

• A building permit for major works, the one required for the most significant works, because a new home is created.
• That the local planning rules allow homes on that floor and in that area and that the building does not exceed the permitted number of homes.
• Respecting the original composition of the façade, as the municipal criteria for new ground-floor homes require.
• Meeting the minimum habitability standards required by Catalan regulations and obtaining the certificate of habitability, the document certifying that the converted premises are fit for use as a home. Without the certificate, as a rule, the home cannot be occupied or connected to utilities.

Before buying commercial premises to convert or starting the works, it is advisable to have an architect assess whether they can become a home.