María Cardenal Solar
PUBLIC LAW DIVISION
The Third Chamber of the Spanish Supreme Court delivered a judgment on 5 November 2025 resolving a cassation appeal of particular relevance in the field of Administrative and Coastal Law. The case examined whether a homeowners’ association may be the holder of an administrative concession for the occupation of maritime-terrestrial public domain.
The dispute originated in relation to a building located in the municipality of Andratx, on the island of Mallorca, subject to the horizontal property regime. The property included a solarium and a swimming pool partially constructed on maritime-terrestrial public domain. These elements had been covered by an administrative concession granted in 1970 to the former owner of the building. Once the concession period expired and the reversion to public domain took place, the homeowners’ association applied for a new concession in order to maintain such occupation.
The Administration archived the application on the grounds that the homeowners’ association lacked legal personality and, therefore, could not be the holder of an administrative concession. This decision was upheld by the National High Court, which found the archiving of the proceedings to be lawful, leading to the filing of a cassation appeal before the Supreme Court.
The Supreme Court begins by referring to settled case law according to which homeowners’ associations governed by the Horizontal Property Act do not have their own legal personality, but instead constitute communities of property formed by the co-owners of the individual dwellings and commercial premises within the building. Although the legal system recognises that they have broad capacity to act in legal transactions — such as entering into contracts, litigating, managing funds or being subject to tax obligations — this capacity is explained by the system of organic representation through the community president, and not by the existence of an independent legal personality, which could only be recognised
through an express legislative reform.
The Court then states that legal personality constitutes an essential requirement in order to be the holder of an administrative concession over maritime-terrestrial public domain. Demanial concessions grant registrable real rights, allow exclusive and permanent occupation of public domain through fixed works or installations, and generate a stable legal relationship with the Administration, which requires a fully identifiable subject with its own legal capacity. Furthermore, both property and coastal legislation provide for the extinction of the concession upon the extinction of the concessionaire’s legal personality, confirming that this characteristic is structural to the concession regime.
Nevertheless, the judgment introduces a relevant qualification by stating that the lack of legal personality does not prevent the homeowners’ association from intervening in the concession procedure. By virtue of the organic representation provided for in the Horizontal Property Act and the standing of the co-owners to act in the interest of the community, the association may apply for the concession and process the administrative procedure before the Administration. However, such action is merely instrumental and does not attribute formal ownership of the concessionary right to the association.
The Court establishes that, should the concession be granted, ownership must lie with all the co-owners of the affected common element, distributed in proportion to their respective participation quotas, thus ensuring that no owner is excluded from the rights and obligations deriving from the concession. The lack of unanimity among the co-owners does not prevent the processing of the application, but it does condition the final award, as the Administration cannot impose the ownership of a concessionary right on those who have not given their consent.
Finally, the Supreme Court rejects the argument that the temporary administrative authorisations previously granted to the homeowners’ association for the installation of sun umbrellas on public domain may be regarded as binding acts. Such authorisations are revocable and allow a limited and provisional use of public domain, whereas a demanial concession has a different legal nature, as it involves permanent occupation and the constitution of a real right.
In conclusion, the Supreme Court dismisses the cassation appeal and establishes as case law that homeowners’ associations, lacking legal personality, cannot hold administrative concessions over maritime-terrestrial public domain. However, they may participate in concession procedures acting as representatives of the co-owners, thereby precisely defining the boundaries between the horizontal property regime and the legal framework governing public domain.
It is important to be aware of the potential legal consequences of the doctrine established by the Third Chamber of the Supreme Court, as it clearly limits the ability of homeowners’ associations to hold administrative concessions over maritime-terrestrial public domain due to their lack of legal personality.
In particular, where a previous concession had been granted to a natural person and has expired and reverted to public domain, the association cannot replace that person nor apply as a single entity upon expiry. Any new concession must instead be granted directly to the individual owners, distributed in proportion to their participation quotas.
