Neighboring communities that have a bar on the ground floor of the building should know that they can demand the removal of the terrace when it occupies common land, even if the premises are rented and whoever operates the business is a tenant. The Supreme Court has confirmed a ruling in which it supports that the community sue not only the owner of the premises, but also the tenant who was using that space to place tables, chairs, barrels, umbrellas and other elements of the bar.
The failure key (to which you have had access NewsWork) is that the Supreme Court distinguishes two situations. On the one hand, the person usually responsible for the community is the owner of the premises. But, on the other hand, when the person who is actually occupying the common area is the tenant, the community can also claim against him to stop that occupation. That is why the ruling indicates that “the community of owners exercises a real action in defense of a common element.”
That is to say, it is not enough to hide behind the fact that the bar is rented or that the person who operates the activity does not own the premises. If it is the tenant who is occupying the common element, the community can also direct action against him to recover that space.
The community agreement was firm and was not appealed
The case stems from a community of owners who had agreed in a meeting to withdraw the authorization to place terrace elements in an area of community ownership. The lawsuit requested the removal of “chairs, tables, barrels or any other element” installed in that space. In the first instance, they did not agree, but later, the Provincial Court agreed with the community and that decision has been supported by the Supreme Court.
One of the things that stands out the most is that the board’s agreement was not challenged by the owner of the premises within the legal period. For this reason, the Supreme Court emphasizes that this agreement “achieved firmness, became intangible and is mandatory.” This is key, because it makes it clear that, once it was signed, it could no longer be ignored or made void due to the simple fact that the operation of the bar was in the hands of a third party.
Furthermore, the ruling adds a very clear idea: “if the landlord, owner of the premises, is not authorized to occupy the common space, currently used for the operation of the bar, the appellant tenant will lack the right to use it.” That is, the tenant cannot have more rights than the owner from whom he derives his possession.
The tenant cannot challenge the meeting, but can be convicted
The Supreme Court also explains another common situation in these conflicts. The tenant maintained that she was not entitled to bear the sentence, but the court only partially agrees with her. He admits that “it is only the owners” who can challenge board agreements in accordance with article 18.2 of the Horizontal Property Law (can be consulted in this BOE). But that does not prevent the tenant from being sued when he is the one who physically occupies the common area.
In short, the community can demand that the terrace of a bar be removed when it occupies common areas, even if the premises are rented. And it can also do so with respect to the tenant who operates the business, because one thing is who can appeal a community agreement and quite another who is actually using the space that must be left vacant.