Nowadays, it seems increasingly essential, as users, to know how far our rights go and how far we are protected when it comes to contracting, as consumers. After comings and goings with the interpretation of the Courts in relation to the condition of consumer, finally it has become clear that the condition of consumer is all those persons, natural or legal, who contract goods or services as final recipients. But what happens to those entities without legal personality as a “Community of goods”? Can their contracts be considered as consumer relations?
For this, we must start from the concept of “Community of Goods”, understanding this as that association between two or more parties (called communal partners) who hold the property and ownership of an undivided thing or right, for the management or exploitation of that common good. Its origin can be found in art. 392 of the Civil Code.
These “Communities of goods” are constituted by means of a private document signed by the communal partners, however, as they are not constituted in a Public Deed, nor are they registered in any registry, they lack their own legal personality, beyond that which corresponds to the communal members themselves.
Through their partners, the “Communities of goods” can contract products or services related to the management and administration of the goods of the community, but do these contracts of services or products of the “Communities of goods” maintain the condition of consumer relations? The answer, as it could not be otherwise, is “depends”.
Article 3 of the Law for the Defence of Consumers and Users provides for the possibility that non-profit entities may be considered consumers when they act in an area that is not part of a commercial or business activity.
The Jurisprudence of our country has analyzed in detail the requirements that must meet a relationship to be considered consumer, concluding that, in the current legislation on consumer protection, it is not the character of businessman or individual of the contractor that must be taken into account to decide the rules to apply, but whether or not it is the final recipient of the product or service contracted. In our case, in relation to the “Communities of goods”, the nature of the consumer relationship will be conditioned by whether or not the contract is related to the object for which the Community of goods was constituted.
The problem is that the co-proprietors will rarely subscribe to a product or service with respect to the common good, which is not related, at least partially, to the exploitation of the common good and, consequently, to the activity and purpose of the “Community of goods”.
For example, imagine a “Community of goods” constituted for the purpose of exploiting a building, each and every floor being the property of the communal partners. If the “Community of goods” enters into a maintenance contract with a company providing cleaning services in connection with the building, will that contract be regarded as a consumer relationship?
Some Provincial Courts, such as the Court of A Coruña in its Judgment of 28 March 2018 (EDJ 2018/675845), have understood that, if any of the dwellings in the building of the “Community of goods” were the habitual residence of one of the community members, or were being used for private purposes and not for exploitation, we would be dealing with a case of “Community of goods” in relation to consumption. That is to say, in principle, the maintenance of a building of dwellings and commercial premises, which has the purpose of being used as the habitual residence of the commoner, and the others for renting, would not exclude the condition of a consumption relationship. The loss of the condition of consumption relationship will occur in the relations with the tenants of the rest of the buildings, where it acts as a professional, but not with respect to the contractor of the service provided to the community.
However, to the contrary, what this jurisprudential current tells us is that, if the purpose of the constitution of the “Community of goods” is the full exploitation of that property, and that no co-owner uses any of the common goods for private purposes, the condition of consumption relationship will be automatically excluded, since the contracting will be directly related to the exploitation of the common good and, consequently, will be fully integrated into its profit or commercial activity.
Therefore, when analysing the possible consumer relationship condition of the transactions carried out by a “Community of goods” – or its communal partners – we must take into account whether the goods of the community are fully exploited for their commercial activity.
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