The tacit consent value in the owners' comunity

We would like to thank our fellow Tamara Sandia for follow Vlex law portal. Thus we have been able to bring to our blog a new topic: The evidentiary value of the tacit consent within the owners' community.

1. Introduction: tacit consent concept

In the case that we will analyze, understanding the notion of tacit consent is essential.

How is 'tacit consent' defined? It is an acceptance of a de facto situation that is extended in time, this acceptance arises from the inactivity of the affected persons in front of a given situation.

As the popular Spanish saying goes: 'Quien calla otorga' (silence implies consent). In Law there are many situations in which this kind of acceptance takes place, without going any further, today we will analyze an example: the position of the courts in sentence 324/2023 of April 28, 2023.

2. Exposition of the facts judged

In this link you can access the sentence 324/2023 of April 28, 2023. In it the Las Palmas Court of Appeals upheld the appeal against a regulation of the owners' community of a neighbor who was using the community's passageways as a terrace for his bar.

Against him the other co-owners argued that these are communal spaces, therefore, they cannot be used as private. Consequently, they demanded the possession restitution of the space, with the consequent removal of all the bar furniture.  In order to support their demand, the other co-owners took out an order that gave power to the president to prohibit the private use of communal spaces.

3. The judge's sentence

In upholding the appeal of the resident and refuting the arguments of the rest of the community, the judge stated that for thirty-five years the land was allowed by the co-owners of the community to the defendant without any objection, this long period of time, equivalent to a tacit consent that consolidates the right of the defendant to use it as a plot of land.

Quoting the judge: 'The occupation that the defendant has been carrying out for thirty-five years without authorization from the Board of Owners cannot be qualified as occupation without authorization, but rather (the persistence of this situation over time) constitutes a genuine recognition of the right to use the land, which only confirms what was already tacitly consented to (...)'.

In conclusion, it is totally indifferent that the Board did not approve the use of the passadissos as a terrassa. From here it follows that the validity of the order that empowered the president with the power to prohibit the use of private spaces declined.

4. Case lessons for a community of property owners

When a determined use of the common spaces of the property generates controversy we strongly recommend to debate it at the Meeting of Owners that follows the appearance of the controversy.

Is it enough to show your hand at the owners' meeting and put the issue on the table?

No, it is necessary to put a point on the agenda of the next meeting. To do this, a letter must be sent to the President with the request to discuss, to give the example of the case in question, "the use of the passadissos as a terrace".

Then it will be possible to dialogue, to vote -and to approve or reject- the subject that you have proposed. Once the community has pronounced itself, it will no longer make sense to say that there is a tacit consent, in any case, it will be an explicit consent and, therefore, legally binding -from the moment that the vote is recorded in the minutes-. 

It is worth noting, as the analyzed sentence shows, that the passage of time consolidates de facto situations to turn them into legal situations with all those of the law.

At Finques Feliu, in favor of good coexistence, we will always advise:

- To listen to the other party's reasons.

- To be on the other party's side and try to reach a balanced and beneficial agreement for everyone.  

- To resort to the mediation of the Administrator of the estate.

- To vote the hypothetical agreement at the Meeting (obviously for this vote to be valid the result must be recorded in the minutes of the meeting).

Only if all the previous phases have been fulfilled it is possible to challenge judicially a firm agreement taken to the Meeting of Proprietors.

We hope we have helped you!