Change of premises to housing because there is no express prohibition in statutes

The DGRN understands that the owner can only be denied the right to change the use of their premises to housing, when the statutes expressly and clearly prohibit it.

By means of a deed authorized by the notary, the owner of a commercial premises integrated in a building in a horizontal property regime, and with the appropriate administrative licenses, indicated that he had rehabilitated and conditioned this premises to be used for housing.

In the community statutes, works are authorized provided they do not affect common elements or cause damage to another owner. If mural works are required they must be previously approved by the board, as if the works affect common elements. They also include the obligation that the premises be destined for commercial or industrial uses.

The registrar suspends the registration because it understands that the change of use requires the unanimous agreement of the total of the owners because such change implies a modification of the statutes since these do not allow the premises to be destined for residential use. In addition, if this change to housing has produced an interior or exterior variation that has required wall works, these works should have been previously approved by the board of co-owners.

The notary authorizing in his appeal opposes this suspension and defends the possibility of practicing the registration by not expressly prohibiting the statutes the change of use in accordance with the doctrine of both the TS and this Directorate General.

The DGRN recognizes that its established doctrine contemplates as a general rule the possibility of any use, provided that this is appropriate to the nature of the object and does not violate the generic limits of any property or the specific ones of horizontal property. However, bylaws may establish restrictions on their possible uses, restrictions that must be clear and precise.

In this same sense, the jurisprudence of the TS is recognized, which recognizes the constitutionality of the right to private property, a right that can only be legally or conventionally limited. For the TS, the mere description does not imply a limitation of use and for a ban of this type to be effective a clear and precise stipulation is required to establish it.

In this case, for the DGRN, there is no violation of the statutes since these what prohibit is that the premises are dedicated to uses other than commercial or industrial, for example recreational tertiary uses, but it is not explicitly prohibited to allocate The same to housing. There is also no evidence that the transformation carried out affects common elements, modifies the fees, undermines the security of the building, or alters its external configuration or state structure, and the authorization of the owners’ meeting is not necessary.