A Community can be governed under the Law of Horizontal Property as amended in 1999 even if the statutes are not registered or the Community has not constituted itself legally. If the Community meets the requirements of Article 396 of the Civil Code i.e. there are common elements shared by the Community (such as roads, swimming pool etc.) the Community can use the law to compel the payment of debts or enforce the rules and statutes.
When you buy a property on an urbanisation, under the Spanish Law of Horizontal Property you automatically become a member of the Community of Property Owners, whether you like it or not! The Community of Property Owners is the Spanish system for regulating the joint ownership of common property. On an urbanisation such as ours this means the roads, swimming pool, gardens, street lights, drains and other similar services. This type of ownership is called “condominium” or co-ownership. It is the responsibility of the owners to decide how the Community is managed, how much they want to pay for the management and maintenance of the common property and how the money will be spent. That is why attending the Annual General Meeting (AGM) is so important, it is democracy in action.
The governing bodies of the Community are as follows in order of precedence:-
The Annual General Meeting deals with the accounting and budget for the Community. Once the budget has been approved, each owner has a legal responsibility to pay in accordance with their "cuota", without exception. The Community is granted the right by law to collect this money.
Unpaid fees creates a situation which is unacceptable. When expenditure is more than income the shortfall must either be taken from savings or be paid by the owners in increased fees. The owners who pay on time should not have to subsidise the debts of others and there comes a point when more owners will refuse to pay. Unless action is taken the list of debtors will increase.
When a private property, forming part of a Community is sold, the law prescribes that the new owner is liable for the unpaid fees of the present year and the preceding year, nothing more.
As a Community of Owners we have a legal responsibility to ensure the Community remains viable. We must take legal action against non-payers to force them to pay before the debts become prescribed.
The courts have the power to seize any owners assets within Spain to recover unpaid Community fees, even place the property for sale at public auction.
At the AGM we agreed a course of action, and that the President could instigate legal action when it was deemed necessary without further consultation with the Community. There is a 30 day period after the Minutes have been issued for people to respond to what has been agreed.
Back to TopThere are various ways to pay.
So, debtors be aware that you have a choice! We politely request that you pay what you owe before the fees are due again in January, or accept that legal action will be taken and a court order made against you, and your property. Also bear in mind there will be a 20% penalty for non-payment, you will have to pay the Community legal costs, you will have to pay your own legal costs, and you will have to pay court costs, and still have to pay what you owe in outstanding fees.
Back to TopThe primary roll of the President is to carry out the actions agreed by the members at the AGM. Usually he/she will have no training or formal qualifications for the job, and is normally just one of the owners trying to do what is best for the Community in general.
The duties of the President include:-
The President is not a judge, lawyer, policía local, guardia civil, town hall planning officer, architect, mayor or town sheriff. He/she is not “in charge” of the Community and has no powers of enforcement. It is not the responsibility of the President to sort out everybody’s individual problems.
Back to TopIt is the responsibility of all owners to adhere to Spanish Law and the internal Community rules, and to take an active role in upholding these rules in order to make the urbanisation a good place to live or spend a vacation. If you believe that someone is acting against the Community rules, do something about it yourself, ask the offender to stop. If you have a problem with your neighbour, you sort it out with your neighbour. If you believe that someone is acting illegally against your own personal interest, inform the appropriate authority, if necessary take legal advice from your solicitor, or go to the police and make a denuncia.
Unanimity is only required for the validity of those resolutions, which involve approval or modification of the rules contained in the charter of constitution, or the Community statutes.
The establishment or elimination of security services or other similar common services of general interest shall require a vote in favour by three fifths of the owners owning three fifths of the share cuotas, even if it involves modification or addition to the charter or statutes.
Work carried out or new services introduced which eliminate barriers, which hinder the access of handicapped persons, shall require a vote in favour by a simple majority of the owners owning a majority of the share cuotas, even if it involves modification or addition to the charter or statutes.
New services relating to telecommunications and renewable energy shall require a vote in favour by one third of the owners owning one third of the share cuotas. However the cost of installation and maintenance of these services cannot be charged to owners who did not vote expressly in favour.
All other resolutions shall require a vote in favour by a simple majority of the owners owning a majority of the share cuotas.
Back to TopAll owners must be correctly notified of all decisions taken and have 30 days to lodge an objection in writing. Failure to lodge an objection within 30 days is taken as a vote in favour of the resolution.
Where a majority decision cannot be reached, any interested party can petition the Court within 30 days to make a ruling. All dissenters must be duly notified and heard by the Court who will also rule on costs.
AGM decisions can be challenged in court for up to three months following the meeting, or up to one year if it is contrary to the law or statutes, in the following situations:-
Challenges can be made by owners who expressly voted against, owners who were absent for whatever reason, and owners who were incorrectly deprived of their right to vote.
Members of a Community are allowed to make internal rules by majority vote. This includes items like banning of pets and colour of paintwork. Such rules are only enforceable if a new owner specifically agrees to accept the statutes in their purchase contract, unless the Community is registered in which case the rules apply to all owners regardless.
Back to TopAn owner can modify the architectural features, installations and services of their property, so long as it does not diminish or alter the safety of the building, its general structure, its form or its exterior condition, nor prejudice the rights of another owner, reporting such alterations beforehand to the representative of the Community (i.e. the President).
An owner cannot make any alteration whatsoever to any other structure within the Community. If there is a need for urgent repairs it should be reported to the President or Administrator.
An owner is not allowed to carry out any activity anywhere within the Community, which is not permitted in the statutes, which damages the Community, or which violates laws regulating activities that are a nuisance, unhealthy, noxious, dangerous or illegal.
The President of the Community, either on his own initiative or at the request of any owner, shall require the immediate cessation of any activities prohibited in this section, under warning of appropriate legal action. If an offender persists in his conduct, the President, upon authorisation of the General Assembly convened for the purpose and by simple majority vote, can seek a court injunction to cease the offending action immediately. If the offender does not obey the injunction, the judge can rule him to be considered in contempt of court and ordered to leave the property for up to three years.
The problem with taking court action is proving that an “offence” has been committed. If it is something obvious and on-going like playing loud music or throwing rubbish into the street on a daily basis then witnesses and evidence will be readily available, and reporting the matter to the police would be even better.
The courts are supposed to be impartial but they are rightly biased towards the accused when it comes to proving what happened i.e. innocent until proven guilty. Without solid evidence and independent witnesses the court will not find the defendant guilty. Bear in mind that the court procedure in Spain may be totally different to what you would normally expect in your own country.
By majority agreement of the General Assembly, the Community can request the President to petition the court for an injunction against any owner carrying out illegal/anti-social activity. However without the evidence and testimony of witnesses actually attending in court this would be a pointless exercise.
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