In certain circumstances the law of horizontal property does permit the change of use from a commercial property to a residential property.
No Express Prohibition
In a recent decision the Supreme Court has confirmed that for owners of properties in urbanisations, in certain circumstances the law of horizontal property does permit the change of use from that of a commercial property or ‘local’ to a residential property.
The case came before the Supreme Court in October, having been appealed from the Regional High Court in Almeria. The High court had agreed with the owner of the property that there was no express prohibition in the Community Statutes preventing the change in use and, accordingly, she had the absolute right to convert the property to whatever use she considered appropriate. The High Court thereby overturned the original decision of the court of First Instance which had decided in favour of the community of owners who had objected to the change in use of the property from an office to a residential apartment.
Absence of Legal Barriers
The Supreme Court agreed with the High Court decision and it reiterated earlier decisions whereby, if there is no legal barrier – either statutory or as a result of the Community Statutes – then the change in use of a property from residential to commercial, or vice versa, was entirely a matter for the owner of the property to decide alone.
In the situation where there is no statutory or regulatory prohibition in the type of use envisaged by the owner, but it is expressly prohibited by the Community Statutes, or would involved a change in the structure of the property, then a unanimous agreement by the Community of Owners would be required before being allowed to effect the changes requested.
This situation is likely to become more and more common in Spain as the popularity of shopping centres continues to decimate the high street and render properties originally designated as having a commercial use nonviable as they are no longer able to generate sufficient profit and therefore lie empty for long periods of time. The Court’s decision may also be relevant to those wishing to use their home as a business.