Nudists in the Picornell pools of Barcelona.Joan Guerrero
The Civil Chamber of the Supreme Court has handed down a sentence that prevents the statutes of a community of neighbors from imposing the practice of nudism to allow access to certain common areas of the urbanization, such as its pool and gardens.
The appeal was filed by a group of residents who disagreed that a rule of this nature, imposing the practice of nudism, could veto their presence in those common areas, which, thus, were reserved only for those who were naked.
The community came to guarantee it through security guards who had to verify the nudity of the attendees.
The building consists of a block of apartments for vacation use located in an urbanization in which the community of owners had declared nudist practice essential for access to the aforementioned common elements.
The Court of Jaén that heard the case in the first instance and the Provincial Court had dismissed the claim of the dissatisfied owners, after considering it proven that there were unanimously approved statutes that required nudism to enjoy the aforementioned common elements.
However, the First Chamber appreciates that there is a patent error in the assessment of the evidence that supported this conclusion, since a simple reading of the community minutes demonstrates with evidence that said statutes were not approved and in the sentences handed down in other previous proceedings did not address that issue.
And given this lack of foresight in the statutes that justifies the deprivation of enjoyment for the co-owners dressed, the sentence understands that "the imposition of nudism violates the right to equality, supposes a discrimination of the plaintiffs because of their ideas and thoughts and attentive to their freedom of movement and their right to privacy”.
Consequently, the appeal of the plaintiff owners is upheld, a decision based on the criterion that it is not possible to arbitrarily prevent, by acts of force and the contracting of private security services, that the plaintiffs can access the use and enjoyment of the facilities, in the regime of horizontal property on common elements if they do not practice nudism.
The court emphasizes that this practice is "a perfectly respectable and legitimate personal choice, but whose practice cannot be required without a basis for it."
The sentence declares the violation of the aforementioned fundamental rights and sets compensation for moral damages of 1,000 euros for each of the plaintiffs.
The sentence includes different conflictive episodes in the same community, and adds after giving an account of them that "what has been reported up to now would not cease to be a neighborhood conflict, without significance for the purposes of fundamental rights, if it were not because with the excuse of the content of According to these statutes, the defendants intend to impose, obstinately and sometimes violently, the practice of nudism on all residents, so that those who do not practice it cannot make use of the common spaces of the urbanization and, particularly, of its swimming pools.” .
And it further emphasizes that "in other words, the defendants intend, in an absolutely unusual way, to force the owners who want to make use of the common spaces of their co-ownership to undress."
To better justify the reasons why it accepts the claim, the court also stresses that "the climate created is, therefore, unbearable" for the complainants "and many other neighbors, who are harassed, coerced and discriminated against, for no other reason than not be practitioners of nudism”.
And finally he mentions that due to his interpretation of the statutes and purposes of the community, the presence of the plaintiffs in "their vacation residence has gone from being a place of rest to being a place of suffering", to which the sentence tries to put end.
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