Thursday, September 28, 2023

Even when using a common room without the consent of the co-owners, tacit consent cannot be ignored if continuous use for more than 35 years can be proven

The Provincial Court of Las Palmas de Gran Canaria (Spain) annulled the first instance judgment ordering the owner of a hotel to return ownership of the part of the common corridor of a building that was used as a terrace bar, in favor of the owners’ association.

The complainant claimed that more than 30 years ago the block of flats had a single owner who allowed him to use the terrace as a bar, although the current owners’ association had also allowed him to use it by allowing him to return later on After he temporarily left it for renovation and renovation work, the board of directors later instructed the owners’ association to take legal action against him because he did not have his express right to use it. He believes that he cannot be forced to take back possession of the terrace as he has been using it for 35 years.

In this regard, the regional court states that “(…) the profession that the defendant (and through him his tenant, the tenant of the previous community members) cannot be classified as a profession without the approval of the owners’ meeting.” without a solution of continuity), but represents a genuine recognition of the right to use the terrace, which only served to confirm what had already been tacitly agreed, and this after evaluating the series of contemporaneous circumstances uncovered from which it can be established “A very long silence and inaction from the community amounted to their approval.”

In addition, case law states that with regard to the tacit consent relating to the seniority of the profession “(…) it must arise from unambiguous actions that clearly express the agent’s idea of ​​​​conformity, without the possibility of attribution .” This acceptance of mere knowledge of a particular will in this sense, as requiring actions with positive probative value, requires tacit assent to the reality of an action that highlights the desire or will of the agent without offering the possibility of various interpretations. It consists in the fact that absolute silence does not produce legal effects unless the law or the will of the parties has been previously recognized or granted, and qualified silence can only be spoken of if it is linked to previous positive facts, a previous activity of the parties, combined is party that has remained silent, or to certain subjective or objective situations that serve as a useful element to take for granted the manifestation of a certain will.

On this basis, the court set aside the contested judgment and canceled the order to return the common area of ​​the building.

Nation World News Desk
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