The Provincial Court of Córdoba has ruled in favor of a community of owners who, a company that owns several premises rented in the building to hospitality businesses, had denounced for prohibit smoking in an area next to its terraces. The court has determined that the community has full power to prohibit smoking in its arcades, even if they are open-air spaces, as they are common areas owned by it. It emphasizes that the right of residents not to be exposed to “passive smoking” and to avoid littering cigarette butts in traffic areas is a legitimate interest that prevails over the commercial interests of the owners of the premises.
According to the ruling of April 8, 2025, the Board of Owners approved by majority to prohibit smoking in the arcades and to place information signs. The company that owns the premises, where restaurant businesses operated, challenged the agreement, alleging that it was a strategy to “hinder” their activity. He argued that the ban was illegal according to current health regulations and that the community was committing an abuse of rights by limiting the use of an open space that served as a complementary area to the terraces of the establishments.
The Court of First Instance number 9 of Córdoba initially dismissed the lawsuit, considering that the community had the power to regulate the use of its common elements to protect the health of the neighbors and maintain the health of the building. The general interest of residents in enjoying a space free of smoke and dirt from cigarette butts prevailed over the commercial interest of businesses.
The right to a smoke-free space and the rejection of “abuse of rights”
The Provincial Court of Córdoba confirmed the decision, arguing that the sovereign will of the Board of Owners must be respected as long as it seeks the common well-being and not a purely harmful purpose. Based on article 7.2 of the Civil Code, the court clarified that for there to be an abuse of rights, there must be an abnormal exercise of a rule with bad faith and without a protected benefit, something that did not occur in this case as there was a “just cause” aimed at the protection of health.
The ruling mentioned Law 42/2010 (which modifies Law 28/2005) to highlight that the community, as owner of the space, could expand the protection of neighbors by prohibiting tobacco in their common areas, thus preventing the arcades from concentrating smoke that ended up entering the homes or affecting those who passed through them.
Furthermore, he highlighted that according to article 18.1.c) of the Horizontal Property Law, the agreement did not entail serious and disproportionate damage to the hospitality establishment, since ensuring health against “passive smoking” and maintaining cleanliness in a place frequented by minors is a legitimate interest and not an antisocial excess.
As the arcades are common elements of the building, the community has the legal power to regulate their use, and the fact that they were outdoor spaces did not prevent tobacco consumption from being restricted in them, if this was decided by the majority of the Board. It was not possible to file ordinary appeals against this ruling, but there was a cassation appeal before the Supreme Court.