Wrongful acts of tenants

Responsibility of the owner for wrongful acts caused by tenants

Beware of wrongful acts of your tenants, especially if you are a homeowner in a community. In fact, you could be jointly legally liable for any harm, damages or annoying behaviour caused by your tenant to the rest of the neighbours.

Legislation applicable: Art 7.2 Horizontal Property Law

2.- The owner and the occupant of a unit shall not carry out in such unit or in the rest of the building any activities not permitted in the community statutes; or which may cause damage to the property or contravene the general regulations concerning inconvenient; unhealthy, noxious, hazardous or unlawful activities.

The president of the community, on his/her own initiative or at the request of a unit owner or occupant shall urge the person or persons carrying out the activities banned under this subsection to desist under the admonition of a court action. Should the offender persist in his/her conduct, the president, subject to the authority of the meeting of the owners’ general assembly, duly convened for this purpose, may undertake an injunction procedure; which, insofar as not expressly provided for in this section, shall be settled by ordinary proceedings. Once the action is brought, including the accreditation of the authoritative notice to the offender and the certification of the resolution adopted by the general assembly, the judge may order as a precautionary measure the immediate cessation of the prohibited activity, under the admonition of incurring an offence of disobedience.

Furthermore, the judge may adopt any precautionary measures necessary to enforce the injunction. The action shall be brought against the owner and, if fitting, against the occupant of the unit. Should the court adjudge in favour of the plaintiff, it may decree, besides downright cessation of the prohibited activity and award of damages as may correspond, the deprivation of the defendant’s right to use the unit for no more than three years, depending on the seriousness of the offence and detriment caused to the community. If the offender were not the owner; the judgement may definitely terminate the offender’s interest in the unit and decree his/her immediate eviction”

Recommended advice to the Landlord

The landlord must inform the tenant urgently, even the landlord must be prepared to terminate the lease. if necessary.

Recommended advice to the Community

First, if the tenant causes inconvenience, the community of owners must:

1.- Require the tenant to cease the annoying activity extrajudicially through burofax or similar. The requirement must be made by the President of the Community on his own initiative or upon request of any of the owners or neighbours. The Horizontal Property Act does not require a prior meeting or agreement to this effect.

2.- The owner must also be informed of the annoying activity that his tenant is doing.

However, if despite this warning, the inconvenience might continue, and the landlord might maintain a passive attitude, the community of owners will have the right to authorize the President to initiate legal action against both the tenant and landlord, with prior agreement by the Community in a formal AGM.

Will court action be necessary?

If all the friendly attempts might fail, the lawsuit would be strongly advisable. This lawsuit would request for the cessation of wrongful activity and even demand compensation for any damages caused. As indicated before, both the landlord and tenant would be jointly liable, as clearly indicated by the Supreme Court Ruling in Nº 832/239, of December 18, 2009.

Regulated Solicitors and Property Administrators

We hope this information is useful. Subsequently, should you be affected by this problem or you might be interested in receiving more specific information, please do not hesitate to contact us either by replying to this message or preferably by visiting also our website www.bestsolicitorsinspain.com 

We are proficient in community problems, thanks to our combined experience as Litigators lawyers and property administrators.

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Finally, thank you very much for your attention, and in case you might have any question or doubt at all, please do not hesitate to contact us and we will be glad to clarify immediately.

We look forward to helping you and the benefit of our “know-how”.

Kindest regards.

Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practising Spanish Solicitor. REGULATED PROPERTY ADMINISTRATOR