The responsibility of the lessor and or lessee for damages caused to common elements
One of the main problems suffered by neighboring communities is the damage caused by willful or reckless behavior of the tenants. In this article we analyze the hypothetical responsibility of the owner, in the damages made by his tenant.
Regarding the lessor's responsibility for the damages caused by the tenants in the common elements, the doctrine establishes assumptions of responsibility of the lessors, according to Judgment 216/2004 dated October 18, 2004 of the Provincial Court of Albacete.
- There is non-contractual responsibility of the lessors if there is a prior requirement for repeated damages and there is an omission in the response.
- If the compensation quantum is proportional to the benefits obtained from the income received.
On the other hand, we have jurisprudence against the responsibility of the lessor in the damages caused by the tenants in the common elements, according to Judgment 44/2016 dated February 5, 2016 of the Provincial Court of A Coruña.
- The lessee is the one who controls the use of the property. The consequences of this use attribute the responsibility for damages caused to third parties.
- The landlord assumes no responsibility as it is not related to the property from the contract.
We also have another assumption regarding mixed responsibility for lessor or lessee, according to Judgment 247/2010 dated May 31, 2010 of the Provincial Court of Madrid.
- The landlord, according to article 1,554 CC, must keep the tenant in the peaceful enjoyment of the lease for the entire time of the contract and must make all the necessary repairs in the home in order to keep it in a state of serving the use for which it was intended.
- For its part, the lessee is obliged to use the thing leased as a diligent father of the family, allocating it to the agreed use (art. 1,555 CC).
But, in addition, both have other obligations with respect to third parties or neighbors.
- The lessor is at the same time a co-owner within the community of property owners.
- And the tenant as a neighbor's neighbor is obliged not to cause them harm with the use of the rented house (art. 1902 CC).
In the latter case, we analyze the commoner's liability for damage caused to common elements by their vacation rental tenants
We have repeated on several occasions that the solutions to annoying third parties or neighbors would be to establish internal regime rules that include this will agreed and approved by the community. Setting that the landlord himself will be forced to assume it, or the insurance company that hires for the damages caused by his tenants. This circumstance could be extended and extended in addition to the vacation rental budgets, to any type of rental, so as not to leave out the rest of the leases, such as seasonal or long-term.
Subscription by the lessor of damage insurance policy
Every owner who has made a vacation rental contract, or any other, must subscribe each year to an insurance policy whose coverage addresses the damage caused by the vacation rental tenants, or any other rental relationship, as well as common elements of the community or exclusive elements of other owners or tenants residing in the community.
Exercise by the community of the action of cessation of the lessor's vacation rental activity
Any owner who wants to formalize a vacation rental contract must worry about the strict compliance with the rules of coexistence of their tenants, and alert of the expulsion when the president or administrator of farms receives a complaint for causing damage to common elements.
In the case of passivity on the part of the owner, the president will call an extraordinary meeting, in order to be able to deal with the cessation of the rent to the offending owner.
Communication from the community to the landlord of damages caused by tenants in common elements
When the community of owners detects that the tenants have caused some type of damage in the common elements of the community, or in the exclusive elements of a community member, the lessor will be notified directly with the amount of the invoice for their payment. The community will directly request the services of a professional to proceed with the repair, after proof of a photographic report of the damage caused, so that it can be transferred to the lessor for payment or charged to the insurance policy contracted for this purpose. .
The community will open an incident report for damages caused by vacation rental tenants, stating:
- Type of damage caused.
- Identification of the person (owners, concierge, third party, etc.) who has seen the tenant causing the damage.
- Amount of the damages caused.
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