Smoke nuisance in owner’s communities

There are many communities of neighbors whose homes incorporate terraces, balconies, solariums, etc. that with the arrival of good weather incite to share free time with friends and family, so far so good, but when we get hungry we quickly think of making a barbecue, grilling, grilling, grilling, some food while sharing experiences and this is where the conflict may arise.

As always we must think about whether what I am going to do can produce inconveniences such as barbecues, fires, grills or cooking on their balconies or terraces, for the sake of good coexistence between neighbors.

There are few homes that have channeling of fumes, few or many, that we cause cooking in open spaces and that is where the rules regulate these activities, although they can not describe all cases, if they make it clear that my fun or disifrute can not cause discomfort to other neighbors.

As property administrators, we receive many complaints of this type every year and we want to help everyone by showing what rules apply and what they say about it today and according to our best judgment.

We hope you find them helpful.


Here we will indicate which general rules regulate these and other activities that may be a nuisance:

Art. 1908 Civil Code:
“Likewise, the owners shall be liable for the damages caused:
1. Due to the explosion of machines that have not been cared for with due diligence, and the ignition of explosive substances that have not been placed in a safe and adequate place.
2. For excessive fumes, which are harmful to persons or property.
3. For the fall of trees placed in traffic areas, when not caused by force majeure.
4. Due to the emanations of sewers or deposits of infectious materials, built without the appropriate precautions for the place where they were.”

Article 7 of the Horizontal Property Law, “annoying, unhealthy or dangerous activity”.
In accordance with the literal wording of Art. 7.2, which states: “The owner and the occupant of the apartment or premises are not allowed to carry out in it or in the rest of the property activities prohibited in the bylaws, which are harmful to the property or which contravene the general provisions on annoying, unhealthy, harmful, dangerous or unlawful activities.

The president of the community, at his own initiative or at the initiative of any of the owners or occupants, shall require the person carrying out the activities prohibited by this section to cease them immediately, under penalty of initiating the appropriate legal action.

If the violator persists in his conduct, the President, with the prior authorization of the Owners’ Meeting, duly convened for such purpose, may bring an action for injunction against him, which, if not expressly provided for in this Article, shall be processed in accordance with the rules governing the trial of cognition.

[This third paragraph of this section 2 has been modified by Law 1/2000, of January 7, 2000, on Civil Procedure (BOE No. 7, of January 8, 2000), first final provision, section 1.]

Upon presentation of the complaint, accompanied by the accreditation of the reliable requirement to the infringer and the certification of the resolution adopted by the Board of owners, the Judge may order the immediate cessation of the prohibited activity as a precautionary measure, under penalty of incurring the crime of disobedience. It may also adopt such precautionary measures as may be necessary to ensure the effectiveness of the injunction. The claim shall be directed against the owner and, if applicable, against the occupant of the dwelling or premises.

If the sentence is upheld, in addition to the definitive cessation of the prohibited activity and the appropriate compensation for damages, the right to use the dwelling or premises may be deprived for a period not exceeding three years, depending on the seriousness of the infringement and the damages caused to the community. If the offender is not the owner, the judgment may declare the definitive extinguishment of all rights relating to the dwelling or premises, as well as its immediate release.

[This article is drafted in accordance with Law 8/1999, of April 6, 1999, on the Reform of Law 49/1960, of July 21, 1960, on Horizontal Property, BOE No. 84, of April 8, 1999, art. 4].

BOE No. 292 of December 7, 1961, pages 17259 to 17271 General Provisions Section
(BOE -A-1961-22449) :
Article 2.
All those “activities” that for the purposes of these Regulations are classified as annoying, unhealthy, noxious, harmful or dangerous are subject to the provisions of these Regulations, to the extent that each one corresponds.The definitions given in the following articles, regardless of whether or not they are included in the annexed nomenclature, which is not restrictive in nature.


Article  3.
Activities that constitute a nuisance because of the noise or vibrations they produce or because of the fumes, gases, odors, mists, dust in suspension or substances they eliminate shall be classified as nuisances.


Those that give rise to the release or evacuation of products that may be directly or indirectly harmful to human health shall be classified as unhealthy.


The qualification of harmful shall be applied to those which, for the same reasons, may cause damage to agricultural, forestry, livestock or fish wealth.


Hazardous products are those whose purpose is to manufacture, handle, sell or store products that may cause serious risks to people or property due to explosions, combustion, radiation or other similar hazards.

Por Gestifinc // October 10