The owners of a building in Cala Llamp will have to cover the swimming pool and open up the terrace they own, which is on public land.
The Supreme Court has ratified the decision of the National Court, which dismissed the residents' petition.
PalmThe owners of a building in Cala Llamp (Andratx) will have to cover part of their swimming pool and open their private terrace to the public because the courts have confirmed they cannot use public land without the appropriate permit. This ruling comes from the Supreme Court, which confirms that a homeowners' association "cannot hold an administrative concession for occupying public maritime-terrestrial land." The decision upholds the ruling of the National Court, which dismissed the application submitted by the Cala Llamp community, an area completely disfigured by rampant development in recent years.
This community is located on the beachfront, very close to the well-known mini-markets. leavesand has a swimming pool and solarium on public land. For years the owners have tried to obtain authorization, but without success, and the courts have repeatedly ruled the same: a solarium with a swimming pool cannot be enjoyed if it is located within the public domain, a protected area established by the Coastal Law.
This case is one of many that reach the courts from owners who try to enjoy the public domain—the first few meters of the coast—for private use and, as in this case, with permanent, non-removable structures. It is noteworthy, however, that the popular mini-beach bars are located right next to this building. leavesAn even larger facility, also with swimming pools and terraces on public land. In this case, it has the authorization of the Coastal Authority.
Background
The case dates back to 1970, when the previous owners of the building obtained an administrative concession for 791 square meters of public land for private use. This authorization expired in 1995. On July 12, 2007, the current owners' association applied for renewal of the concession. In the following years, the process stalled, and on September 6, 2018, the Coastal Authority required the association to either create a board of owners with legal standing or have all the owners apply for the concession jointly, as the association lacked its own legal personality. Despite this requirement, according to the court record, the association did not adopt either of the proposed measures. For this reason, on March 10, 2021, the Directorate General for the Sustainability of the Coast and the Sea issued a resolution to close the application. The main justification lay in the lack of legal personality of the community, an essential requirement under current legislation to hold a concession for public domain land.
The National Court
The community filed an administrative appeal with the National Court and, subsequently, an appeal to the Supreme Court, arguing that, according to the Horizontal Property Law, communities operate with a capacity similar to that of a legal entity. Among their arguments, they mentioned that they can manage contracts, administer common funds, and take legal action through their president or administrator. They also pointed out that the Coastal Law does not explicitly prohibit communities from requesting concessions and recalled that the Administration had previously granted them authorizations to install umbrellas on public land. The Supreme Court has rejected these arguments and reiterates that homeowners' associations are communities of property without their own legal personality, as has been repeatedly confirmed by the jurisprudence of the Supreme Court and the Constitutional Court. This lack of legal personality prevents them from holding real rights such as administrative concessions on public land or registration in the corresponding registry. The court does acknowledge that homeowners' associations can intervene in the proceedings on behalf of the owners and act in the best interests of the co-owners, but formal ownership will always belong to the individual owners according to their share in the building.
Pool removed or covered
Regarding the practical impact of the ruling, the judgment stipulates that the swimming pool, located partially on public land, must be removed or covered, and that the terrace-solarium will become public property, with no possibility of private use by the community. This reflects the legal difference between temporary and revocable authorizations for minimal use of public land, such as the installation of parasols, and permanent concessions with fixed structures, which confer real property rights and require registration. The Supreme Court's decision also rejects the argument that the Administration's prior actions allowing the installation of parasols constitute binding acts that obligate the community to accept the concession. This community, like other private individuals who use public land, sought to leverage the tradition of appropriation to obtain a right. The ruling reaffirms that, without legal personality, the community cannot regularize the situation to obtain a formal concession and that any possibility of ownership should fall directly to the individual owners, in proportion to their share in the building.
Consequently, the Supreme Court dismisses the appeal, upholds the dismissal of the application, and orders the appellant community to pay court costs, up to a limit of 4,000 euros. The ruling also establishes legal precedent regarding the status of homeowners' associations as entities without their own legal personality and clearly defines the limits of their capacity to act on public maritime-terrestrial property.
