How to convert a commercial space to residential without the permission of the comunidade and neighbors

Many owners of commercial premises (locales) want to convert them into residential apartments

Especially, the number of such requests increased during the quarantine. A number of questions arise. Does this decision need to be coordinated with the comunidad? What authorizations need to be obtained?”

First of all, you have to remember that for everybuilding there is a constitutive document (título constitutivo), which spells out all the information about the building (the presence of commercial and residential spaces), the common elements and the percentage of participation of each space (quotas). This document may also contain constitutional rights or community statutes, which are not mandatory but are recommended because they regulate the specific rights and obligations of the owners and the rules governing the community.

But consent will not be required. Not even the approval of the comunidad to change the use of the premises is required. Subject to the following aspects:

• If there is no explicit prohibition in the founding document of the house or the comunidad statute against changing the use of the property.
• If the amendment does not change any common element or percentage of participation for the premises (quota).

This is the doctrine of the Spanish Supreme Court in decision 5403/2014 of December 3. An owner was denied the right to change the use of his commercial premises as a dwelling. The Provincial Court, granted the comunidade’s request and declared that this change of use would change the founding document and therefore, consent from the comunidade would be required.

Nevertheless, the Supreme Court stated that it is not prohibited to change the use of the property unless the law prohibits it, unless it affects the memorandum of association or the comunidade’s articles of association expressly prohibit it. And provided that such a change does not affect the common elements or participation quotas.

And provided that such a change does not affect the common elements or participation quotas.