The new touristic apartment has revitalized the eternal discussion about what to do in cases of misbehavior in the communities.
There is no doubt that short rents to young people for just two or three days to celebrate a birthday in a flat have many possibilities to create a problem for the rest of the neighbors of the community. Vg. It would not be rare that these youngster use the pool out of the time approved, make noise with the music at night, etc.
Apart from this, other tenants or even owners of the community can also breach the internal rules of the community. The question is: What the community can do to enforce the rules?
Some communities have approved to apply sanctions to the owner or tenant who breach the rules. I have seen in many communities that the rule says that a fine of 50 euros would be impose to the one who let their dog free in the garden, or who park their car in a common area, or the one who make noise after a certain time, or the one who has left the dog locked up in the apartment and the dog will not stop barking etc.
It is also normal that the community considers the owner responsible for the payment of the fines that should have been paid by his tenants, as a way to have some guaranty to get the money in cases of short rentals in which it would be impossible to go against the tenants.
The courts have been resolving the legality or not of this kind of fines and the general conclusion for the Courts is that the communities have no legal capacity to impose this fines. Only the Public Administrations ( Town Halls, Junta de Andalucía, Police, Guardia Civil, etc.) are capable to impose a fine.
As a consequence of this, when the communities charge the cost of the fines in the account of the particular owner and this one refuse the payment, the owner will quite probably win the court case against the community and the judge will declare that this owner is not obliged to pay this amount. In addition, the community will probably be obliged to pay the court cost of the owner who has been obliged to go to court in order to declare that the community was not entitle to charge the fine.
In case of misbehavior, our horizontal property law is quite ineffective and the only thing the community can do is to go to court so that the judge can order to stop the misbehavior, to compensate the community for possible damages, and to prohibit to the owner or the tenant to use the property for a maximum period or time of three years.
As you may imagine, going to court is not a solution when the one who breach the rules and cause the problem is the tenant in a short rental that specifically are published in the web as ideal for celebrating special events, because even before the community decides to do something, the tenant will be out of the property and quite probably there will be another one doing the same.
In some cases, the only effective solution is to call the police for breaching the bylaws of the Town Hall because, making noise at night, let the dog free, etc. are not only included in the community but also in these bylaws.
Needless to say that if the behaviour of the tenant could be considered a criminal offence, everybody would be obliged to call immediately to the police.
Unfortunately, the communities do not have the legal capacity to defend their rules by themselves and any kind of fine to the one breach them will be considered null and void, so, until a new horizontal property law regulates the new problem we are facing, the only thing we could do is to call the police or to go to court.