Can the owners' association refuse to allow an extraction flue for commercial premises?

Question

José Manuel Alburquerque · Accepted Answer

It depends mainly on the by-laws. If they authorise commercial premises to carry out the installations their activity requires, the premises only need to give notice. If they prohibit that activity or installations on the façade, the owners' association (the “comunidad de propietarios”) can refuse. If they say nothing, a resolution of the owners' general meeting is required, because the extraction flue usually runs up the façade, a courtyard or the roof, which are common parts. Even so, refusing without good reason when the installation causes no harm that can be shown may be regarded as an abuse. What the by-laws say Many by-laws allow commercial premises to carry out, without the association's permission, the works and installations their business needs. Some expressly mention the extraction flue. If there is such a clause, the premises only have to notify the president or the managing agent of the works. It should be read carefully, because anything it does not clearly authorise still requires a resolution of the meeting. On the other hand, if the by-laws prohibit the activity, for example running a restaurant, or installations on the façade, the association can object. The “Tribunal Supremo”, Spain's Supreme Court, applying the national legislation, has further held that an authorisation given in the past also covers later owners or tenants of the premises, who do not have to ask for it again. If the by-laws say nothing The “Código Civil de Cataluña”, the Catalan Civil Code, requires a resolution of the meeting for works that alter common parts. When the flue runs up the façade or a courtyard, which is the usual case, it will normally alter the external configuration or the structure of the building. A vote of four-fifths of the owners also representing four-fifths of the participation shares, the percentage that each flat or commercial premises has in the building, is then required. If it does not alter them, a simple majority is in principle enough. The association cannot refuse on a whim. If the installation causes no harm that can be shown, refusing may be an abuse of rights, which the law does not protect. The Supreme Court has taken that view under the national legislation and the same duty to act in good faith applies in Catalonia. On the other hand, if real harm is proved, for example to the structure, the safety or the appearance of the building, or from smoke and smells that would reach the neighbours' windows, the refusal is legitimate. In the rest of Spain, the Horizontal Property Act (“Ley de Propiedad Horizontal”) requires three-fifths of the owners and of the shares for such works. A flue already installed and the town council If the premises installed the extraction flue without the permission they needed, the association can require it to be removed. If the flue runs through the courtyard or across the roof, it may amount to an easement, that is, a permanent burden on the building for the benefit of the premises. In that case the rule in the Catalan Civil Code that treats certain works as consented to when the association does not object within four years does not apply. Before bringing a claim, the law requires an attempt at negotiation. If the flue already installed causes a nuisance with smoke or smells, the association can ask the court to stop the nuisance activity, after a prior formal demand by the president and a resolution of the meeting. The association's permission and the council's business activity licence are different things and one does not replace the other. The fact that the town council requires a flue for the activity does not in itself oblige the association to authorise it.