Ciudadanos Europeos

Community of Owners

Written by Per Svensson

Often a foreigner buys a private property in Spain without being aware that he has also bought some common elements in an apartment block or on an urbanisation. He has become a member of a Community of Owners.
As an apartment block cannot exist without common elements, it will always be constituted a Community.
In a development of row houses, with shared plots, walls and roof, there must also be a Community to attend to common elements.
Even in urbanisations with joint ownership of certain plots, construction or installations, a Community may be needed. However, in some urbanisations no Community of Owners has been initiated, and sometimes proves difficult to get one started at a later stage.

Ley de Propiedad Horizontal

The Communities of Owners in Spain are run by a law from 1960 called "Ley de Propiedad Horizontal" (Law on Horizontal Property). It was originally made only for apartment blocks, but is being used for other kinds of developments where common elements exist. A new version of the law came into effect in March 1999, with several important changes.

The main objective of the law is to regulate the administration and maintenance of the common elements the private owners possess jointly. The Community cannot have any other tasks.
The common elements are described in the "escritura de obra nueva y división horizontal" (title deed for description of new construction and its division into common elements and the various private properties). For an urbanisation you may find the reference to the common elements in the approved urbanisation plan (ask in town hall).

Statutes

The Community may or may not have a set of statutes. If there are no statutes, the Community must be run in accordance with the stipulations of the law. The statutes may amplify the law, but never contradict it. To make new statutes or to change existing ones, you need a unanimous decision among all owners.
For everyday life in the Community, you may adopt a set of "Interior Rules". They may be agreed or changed by a majority decision made in a General Meeting.
Each property that forms part of the Community has its share (cuota) determined, (normally in the División Horizontal). The yearly fees to the Community are based on this share.

The governing body
The leadership

The highest decision-making body of a Community is the General Meeting. You can have two kinds of such meetings, the ordinary that must be held each year, and the extraordinary, that can be convened whenever a need arises.
The General Meeting elects a president, a secretary, an administrator and a treasurer.
The administrator may also act as secretary, while the president may also be administrator. The president holds wide powers and represents the Community between General Meetings. He must be one of the owners, while the administrator can be a professional not owning a property in the Community.
It may be decided in the statutes to form a board (junta), for making decisions collectively. But do not forget the wide powers granted by law to the president.

Votes and voting

At General Meetings decisions are taken by a vote in accordance with the percentage share each owner has been assigned. We distinguish between first and second convocations. In the first convocation of a General Meeting a majority is needed of the total number of owners and shares to make decisions. If such a quorum is not possible, one passes to the second convocation half an hour later, where the decisions can be taken with a majority of the persons and shares present. In some questions a qualified majority is needed.

The General Meetings must be called giving at least 6 days notice, in accordance with the law. Some Communities have in their statutes a longer convocation period, or have taken a decision about this at a General Meeting. If no other decision has been taken, and the owner has not given any other address in Spain for notices, the law foresees the letter convoking the meetings may be directed to the property that forms part of the Community.
All decisions on the meeting must be written down in minutes, and an information on decisions taken sent all members. The ones not attending the meeting, have 30 days to protest against what they feel are illegal decisions or decisions contrary to their economical interests and eventually take the matter to court.

Community fees

Debtors must pay

The ordinary General Meetings deal with accounting and budget for the Community. Once the budget has been approved, the Community, often the administrator, sends the bills to the individual owners in accordance with their "cuotas". You must pay in advance, sometimes for the total year, or for part of the year.
When a private property forming part of a Community is sold, the property is liable for the unpaid fees of the present year and the preceding year, nothing more. And the new law provides that a certificate must be issued on whether a property has any debt before that property can be sold in a public deed. The Community must take legal action against non-payers to force them to pay before the debts become prescribed.
If you are part of a legal Community, you are obliged to pay the fees. The Community is granted the right by the law to collect them. The courts may now in an abbreviated procedure place an "embargo" (a seizure) on the inscription of a property for unpaid Community fees, and later even place it for sale at public auction.

Registration and books

The most important registration of a Community is the one in the property register. Normally the Community is mentioned in the "declaración horizontal". You can only register a Community if there are common elements belonging jointly to all private owners.
In addition to the books for the accounting, a Community must have a record book for meetings (libro de actas). You can buy such a book with numbered pages in the bigger bookshops, and have it stamped by the property register. All reports from General Meetings must be inserted in this book, so members can use their right to read and ask copies from them, from the secretary/administrator.

WE RECOMMEND ALL FOREIGN MEMBERS OF COMMUNITIES IN SPAIN TO GET TO KNOW BETTER THE LEGISLATION ON COMMUNITIES AND HOW THEY FUNCTION, AND NOT TRY TO USE THE CUSTOMS OF THEIR OWN COUNTRY ON THE RUNNING OF THE COMMUNITY.

Questions and Answers on Communities of Owners

We are all the time getting questions from leaders and members of Communities of Owners. From time to time we shall deal with such questions also in our reports, for all members of Communities to be aware of them.

An owner of an apartment in our residential building is a lawyer, and he has installed his office in that apartment, receiving his clients there and using the address in his advertising. Is this legal?

Article 5 of the Law on Horizontal Property makes it possible to define in detail in the “constitutional title” (the statutes) how the apartments in a block can be used and not. If the apartments are earmarked for tourist letting, there is where it will be stated. If no professional activity is permitted, it must also be written in this basic title, that you can get a copy of in the property register.

If there are no outright prohibition of using an apartment for professional activities, the question must be answered based on article 7.2 of the law on Horizontal Property, where is written that “the owner or user of the dwelling or premise is not permitted to exercise activities in it or in other part of the building that may be damaging for the building or opposed to the general dispositions on molesting activities (see our article on Neighbourhood Relations under Members Only on our web page).

If there is nothing in the legally agreed statutes prohibiting professional activities in the apartments, and if the lawyers activities are not damaging to the building or molesting to other owners, you can not prohibit such a use.

There are many break-ins and robberies on our urbanisation. In spite of several requests to the town hall for police patrols, nothing has happened. The Community of Owners has now decided to engage a private security company to patrol the streets during the nights, unarmed. Can we do so?

Several urbanisations have done so, and most of them have been stopped by the police authorities, even imposing sanctions on the security company contracted. We recommend always to clarify with the town hall whether you can install such a private security system, or what permits are needed.

Some times the decision to contract a private company may prod the town hall to improve their patrolling of the streets also on the urbanisations outside the town centre.

I am trying to sell my apartment, but have been told that I need a permit from the Community of Owners before I can do so. That cannot be right?

What is needed from a Community of Owners when an owner wants to sell his property, is a certificate that the property has no outstanding debts with the Community. But it is the notary that will request the certificate to be issued, at the time of signing the title deed. You will not to do anything, except paying the fees to the Community.

Without such a certificate, the notary cannot make a new escritura.

In our apartment block there are several business premises on the ground floor, belonging to the Community of Owners. Now an owner of large premises wants to divide it into two parts and sell one of them. Does he need a permit from the Community to do so?

The owner of the local needs to have a permit, since such a division means a change in the “constitutional title” of the Community. The decision must be unanimous, and inscribed in the property registry for the new owner to be a legally registered owner.

Our administrator has increased the fee for his services without consulting the Community, and sent demands for the new higher fees to the owners. Does he has a right to do so by way of a legal, automatic increase in accordance with the price index, as he maintains?

No, he has not. If he wants to increase the fees, he must propose to the President of the Community to revise the existing contract. If the Community disagrees, the contract can be cancelled and a new administrator found.

Non-payers of Community fees

There are many unhappy property owners in Spain today: Investors who bought apartments “off plan” as the real estate agents call it, and who thought they would be able to sell the dwellings with a fine profit when the buildings were finished. Now they find there are no buyers for properties at ‘yesteryears’ inflated prices and must sit with a property they do not intend to use, nor furnish.

Such owners are loath to pay the Communities of Owners fee, arguing they do not use the dwelling and want to sell it.

This is not a valid excuse,

Since the Law of Horizontal Property applies to all dwellings and premises in an apartment block, whether they are used or not, furnished or not, all owners must pay their part of the expenses for the maintenance and administration of the common elements. This includes properties the promoter has not managed to sell. The General Meeting of the owners decides the budget for the Community and how and when the money must be paid.

The title deed of each property shows its share (cuota) in the Community; the percentage of the running costs each must pay. This share cannot be changed unless the Community unanimously decides on another distribution of the costs, a very unlikely event. The law makes it easy for the ‘officers’ of the Community to take fast and efficient action against owners not paying their share of the common expenses. If the ‘Community officers’ have followed the law when it comes to the General Meeting, and specifically the decision to take legal action against the non-payers, a judge may, without delay, pass a decision to put a restraint (embargo) on the property, which will eventually lead to it be sold at public auction to recover the debts.

Bad records may invalidate the decision

However, many Communities are not giving sufficient attention to the legal details of the meeting and how they are managed, and especially in keeping writing records of the meeting. Formal mistakes can lead to the invalidation of the decisions of the General Meeting.

Under “Members Only – Communities of Owners” on our web page www.c-euro.org you can find all details on how to correctly call a general meeting, how to take the decision to bring the non-payers to court, and how the records of the meeting must be in writing. We shall not repeat it here, but we recommend anyone, forming part of a Community where legal action against non-payers is needed, to ensure that all following legalities are complied with:-

Does the letter calling the meeting indicate whether it is ordinary or extraordinary, with two convocations separated by half an hour?

Has the letter about the meeting been sent out by the ones who in accordance with the statutes or the law have the right to do so?

Is the owner against whom the Community want to take court action, their property and debts shown in the proposal for the agenda of the meeting?

Are also the shares (quotas) taken into consideration in the voting and is that reflected in the record?

Are all participants in the meeting listed on the record, with the number(s) of their property and share in the Community?

Is it in the decision, on taking debtors to court, also made clear who has the right to bring it before the judge?

A bad record can easily wreck a right decision.

Last Updated ( Monday, 19 November 2007 )

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