Horizontal Property Law –Commonhold Property Act
Toni Marqués. Real Estate specialist
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The purpose of this Law is to regulate the special form of property established in article 396 of the Civil Code, which is called horizontal property.
For the purposes of this Law, premises shall also be considered as those parts of a building that are susceptible to independent use because they have an exit to a common element of the building or to the public thoroughfare.
This law will apply:
a) Owner’s associations constituted in accordance with Article 5.
b) To communities that meet the requirements set forth in article 396 of the Civil Code and have not granted the constitutive title to the horizontal property.
These communities shall be governed, in any case, by the provisions of this Law with regard to the legal regime of ownership, its privative parts and common elements, as well as with regard to the reciprocal rights and obligations of the co-proprietors.
c) To private real estate complexes, under the terms established in this Law.
d) Sub-communities, understood to mean those that result when, in accordance with the provisions of the constituent title, several owners have, in a community regime, for their exclusive use and enjoyment, of certain common elements or services endowed with functional or economic unity and independence.
e) To urban conservation entities in cases where their statutes so provide.
Toni Marqués. Real Estate specialist
Don’t hesitate to contact me for free information. +34 678 216 706 email@example.com
PROPERTY REGIME BY FLOOR OR LOCAL
In the property regime established in article 396 of the Civil Code, it corresponds to each floor or premises:
a) The singular and exclusive right of ownership over a sufficiently delimited space capable of independent use, with the architectural elements and installations of all kinds, apparent or not, that are included within its limits and exclusively serve the owner, as well as the annexes that have been expressly indicated in the title, even if they are located outside the delimited space.
b) Co-ownership, with other owners of flats or premises, of the remaining common elements, belongings and services.
Each flat or premises will be allocated a participation fee in relation to the total value of the property and referred to hundredths of it. This fee will be used as a module to determine the share of burdens and benefits for the community. Improvements or impairments on each floor or premises shall not alter the assigned fee, which may only be varied in accordance with the provisions of Articles 10 and 17 of this Law.
Each owner can freely dispose of his right, without being able to separate the elements that comprise it and without the transfer of the enjoyment affecting the obligations arising from this system of ownership.
The action of division shall not proceed to put an end to the situation regulated by this Law. It may only be exercised by each undivided owner on a specific apartment or premises, limited to the same, and provided that the provision has not been established as an attempt for the service or common utility of all owners.
The title to the property by flats or premises will describe, in addition to the property as a whole, each of those to which it will be assigned a sequential number. The description of the property must express the circumstances required by mortgage legislation and the services and facilities available to it. The one on each floor or premises shall express its extent, boundaries, the floor plan in which it is located and the annexes, such as garage, attic or basement.
The same title shall set the participation fee corresponding to each flat or premises, determined by the sole owner of the building at the beginning of its sale by flats, by agreement of all the existing owners, by an award or by judicial decision. For its fixation, the useful surface of each floor or premises shall be taken as a base in relation to the total of the building, its interior or exterior location, its situation and the rational use assumed to be made of the services or common elements.
The title may also contain rules for the constitution and exercise of the right and provisions not prohibited by law in order to use or destination of the building, its different floors or premises, facilities and services, expenses, administration and government, insurance, conservation and repairs, forming a private statute that will not harm third parties if it has not been registered in the Register of Property.
In any modification of the title, except as otherwise provided for in the validity of agreements, the same requirements as for incorporation shall be observed.
In order to regulate the details of coexistence and the proper use of common services and things, and within the limits established by law and the statutes, the group of owners may establish rules of internal regime that will also bind any owner as long as they are not modified in the manner provided for taking agreements on administration.
1. The owner of each floor or premises may modify the architectural elements, installations or services of the building when it does not impair or alter the security of the building, its general structure, its exterior configuration or condition, or damage the rights of another owner, and must give an account of such works in advance to the person who represents the community.
In the rest of the property may not make any alteration and if you notice the need for urgent repairs must notify without delay to the administrator.
2. The owner and occupant of the flat or premises are not allowed to carry out activities in it or in the rest of the building that are prohibited by the statutes, that are harmful to the property or that contravene the general provisions on annoying, unhealthy, harmful, dangerous or illegal activities.
The president of the community, on his own initiative or that of any of the owners or occupiers, shall require the person who carries out the activities prohibited by this section to immediately cease them, under warning to initiate the appropriate legal actions.
If the offender persists in his or her conduct, the President, with the authorization of the Board of Owners duly summoned for this purpose, may bring an action against him or her for an injunction which, as not expressly provided for in this article, shall be carried out through the ordinary trial.
Paragraph 3. ª of number 2 of article 7, number 1 of Final Provision 1. ª of Law 1/2000,7 January, of Civil Procedure (B. O. E. 8 January), in force: 8 January 2001
Once the claim has been filed, together with proof of the request made to the infringer and the certification of the resolution adopted by the Board of Owners, the judge may order the immediate cessation of the prohibited activity as a precautionary measure, upon warning of committing the crime of disobedience. It may also take such precautionary measures as may be necessary to ensure the effectiveness of the injunction. The claim shall be directed against the owner and, where appropriate, the occupant of the dwelling or premises.
If the sentence is deemed to be a verdict, in addition to the definitive cessation of prohibited activity and compensation for damages, the right to use the dwelling or premises for a period not exceeding three years may be deprived, depending on the seriousness of the infraction and the damages caused to the community. If the offender is not the owner, the sentence may declare all his or her rights with respect to the dwelling or premises definitively extinguished, as well as its immediate release.
Article 8 repealed by paragraph 1. º of the single derogation provision of Law 8/2013, of 26 June, on urban rehabilitation, regeneration and renewal (“B. O. E.” 27 June), in force: 28 June 2013
1. It’s the obligations of each owner:
a) Respect the general facilities of the community and other common elements, whether for general or exclusive use by any of the owners, whether or not they are included in their flat or premises, making appropriate use of them and avoiding at all times that they cause damage or damage.
b) To maintain in a good state of conservation its own floor or premises and private facilities, in terms that do not harm the community or other owners, compensating for the damages caused by its neglect or that of the persons for whom it is responsible.
c) Consent in your home or premises to the repairs required by the service of the property and allow the essential easements required to carry out works, actions or the creation of common services carried out or agreed in accordance with the provisions of this Law, having the right to receive compensation from the community for damages caused.
d) Allow entry to your flat or premises for the purposes specified in the three preceding sections.
e) Contribute, in accordance with the share quota established in the title or specifically established, to the general expenses for the adequate maintenance of the property, its services, burdens and responsibilities that are not capable of individualization.
The credits for the community arising from the obligation to contribute to the support of general expenses corresponding to the instalments attributable to the past-due part of the current annuity and the three previous years are preferential for the purposes of article 1.923 of the Civil Code and precede, to their satisfaction, those mentioned in the numbers 3,4 and 5 of said article, without prejudice to the preference established in favour of the
The acquirer of a dwelling or premises in a horizontal property regime, even with title registered in the Land Registry, is liable with the real estate acquired from the amounts owed to the owners’ association for the maintenance of the general expenses by the previous owners up to the limit of those that are attributable to the due part of the annuity in which the acquisition takes place and to the three previous calendar years. The flat or premises will be legally affected to the fulfillment of this obligation.
In the public instrument by which the dwelling or premises of the transferor are transferred by any title, it must declare that it is current in the payment of the general expenses of the owners’ association or express those due. The transferor must provide at this time certification of the state of debts to the community coinciding with its declaration, without which the granting of the public document may not be authorized, unless it was expressly exonerated from this obligation by the acquirer. The certification shall be issued within a maximum period of seven calendar days from the date of application by the person acting as secretary, with the approval of the chairman, who shall be liable, in case of fault or negligence, for the accuracy of the information contained therein and for any damage caused by the delay in issuing it.
Article 9, No. 1 (e) of article 9, paragraph 1, drafted by number three of the first final provision of Law 8/2013, of 26 June, on urban rehabilitation, regeneration and renewal (“B. O. E.” 27 June), in force: 28 June 2013
The TS Judgment (1st Chamber) of 22 April 2015, Rec. 319/2013, establishes as a doctrine that “when the debtor of quotas for the expenses of the owners’ association, by his own obligation or by extension of liability, does not coincide with the registrant, the claim against him will only be the object of supporting the execution on the property registered in his name”.
(f) Contribute, in accordance with their respective participation quotas, to the endowment of the reserve fund that will exist in the community of owners to cover the conservation and repair work on the farm and, where appropriate, for the rehabilitation work.
The reserve fund, which is owned for all purposes by the community, shall be endowed with an amount not less than 5 per cent of its last regular budget.
The Community may, at the expense of the reserve fund, take out an insurance contract covering damage to the property or conclude a permanent maintenance contract for the building and its general installations.
g) To observe due diligence in the use of the property and in its relations with the other owners and to answer to them for the infringements committed and the damages caused.
h) To communicate to those who exercise the functions of secretary of the community, by any means that allows to have proof of receipt, the domicile in Spain for the purposes of summonses and notifications of any nature related to the community. In the absence of this communication, the apartment or premises belonging to the community will be considered as address for summonses and notifications, giving full legal effect to those delivered to the occupant of the same.
If a summons or notification to the owner is impossible to carry out in the place indicated in the previous paragraph, it is understood to have been made by placing the corresponding communication on the notice board of the community, or in a visible place of general use authorized for this purpose, with express diligence of the date and reasons for proceeding to this form of notification, signed by the person who exercises the functions of secretary of the community, with the approval of the president. The notification thus made shall have full legal effect within three calendar days.
i) Communicate to the person who exercises the functions of secretary of the community, by any means that allows to have proof of its reception, the change of ownership of the dwelling or premises.
Those who fail to comply with this obligation will continue to be liable for the community debts accrued after the transfer in solidarity with the new owner, without prejudice to the right of the latter to repeat the same.
The provisions of the preceding paragraph shall not apply when any of the governing bodies established in Article 13 has become aware of the change in ownership of the property or premises by any other means or by conclusive acts of the new owner, or when such transfer is notorious.
2. For the application of the rules of the previous section, expenses that are not attributable to one or more flats or premises shall be considered general expenses, without the non-use of a service exempting the fulfillment of the corresponding obligations, without prejudice to the provisions of Article 17.4.
1. The following actions shall be binding and shall not require the prior agreement of the Board of Owners, whether or not they involve modification of the constituent title or statutes, and shall be imposed by the Public Administrations or requested at the request of the owners:
a) The works and works that are necessary for the proper maintenance and fulfillment of the duty of conservation of the building and its common services and facilities, including in any case, those necessary to satisfy the basic requirements of security, habitability and universal accessibility, as well as the ornamental conditions and any other conditions derived from the imposition, by the Administration, of the legal duty of conservation.
The TS Judgment (First Chamber) of 2 February 2016, Rec. 2904/2013, declares as jurisprudential doctrine that “reimbursement by the Community of Owners to the co-owner who has unilaterally executed works in common areas shall only proceed when previously requested to the Secretary-Administrative or the President warning them of the urgency and necessity of those. In the absence of such a request, the Community shall be released from the obligation to pay the amount corresponding to such execution. It shall not be exonerated if the Community is passive in the necessary and urgent works or repairs.
(b) Works and actions that are necessary to ensure reasonable accommodation in terms of universal accessibility and, in any case, those required at the request of owners in whose dwelling or premises they live, work or volunteer, persons with disabilities, or over seventy years of age, in order to ensure that they can be properly used for their needs of the common elements, as well as the installation of ramps, lifts or other mechanical and electronic devices that favour guidance or guidance The mandatory nature of these works will not be eliminated by the fact that the rest of their cost, beyond the aforementioned monthly instalments, is assumed by those who have requested them.
(c) occupying common elements of the building or private real estate complex during the period of the work referred to in the preceding subparagraphs.
d) The construction of new plants and any other alteration of the structure or factory of the building or of the common things, as well as the constitution of a real estate complex, as provided for in article 17.4 of the recast text of the Land Law, approved by Royal Legislative Decree 2/2008, of 20 June, which are mandatory as a result of the inclusion of the building in a scope of rehabilitation or regeneration and urban renewal.
e) Acts of material division of flats or premises and their annexes to form smaller and more independent ones, the increase of their surface area by aggregation of other adjacent buildings, or their reduction by segregation of any part, carried out at the will and request of their owners, when such actions are possible as a result of the inclusion of the building in an area of urban rehabilitation or regeneration and renovation.
2. Taking into account the necessary or obligatory nature of the actions referred to in points (a) to (d) of the preceding paragraph, the following shall apply:
a) They will be paid for by the owners of the corresponding community or group of communities, the agreement of the Board being limited to the distribution of the relevant spill and the determination of the terms of their subscription.
(b) Owners who unjustifiably oppose or delay the execution of orders issued by the competent authority shall be individually liable for any penalties which may be imposed by administrative action.
c) The flats or premises shall be subject to the payment of the expenses derived from the execution of said works or performances under the same terms and conditions as those established in Article 9 for general expenses.
3. They will require administrative authorization, in any case:
a) The constitution and modification of the real estate complex referred to in article 17.6 of the recast text of the Land Law, approved by Royal Legislative Decree 2/2008, of 20 June, in the same terms.
(b) Where this has been requested, subject to approval by three-fifths of the total number of owners representing three-fifths of the participation quotas, the material division of the flats or premises and their annexes, to form smaller and more independent ones; the increase of their surface area by aggregation of other adjacent areas of the same building or their reduction by segregation of some part; the construction of new plants and any other alteration of the structure of the same building; and the construction of new plants.
In these cases, the consent of the affected licensees must be recorded and the Board of Owners, in agreement with them, and by a majority of three fifths of the total of the owners, will be responsible for determining the corresponding damages. The fixing of the new participation quotas, as well as the determination of the nature of the works to be carried out, in the event of any disagreement on them, will require the adoption of the appropriate resolution of the Board of Owners, by an identical majority. In this regard, the interested parties may also request arbitration or technical advice under the terms established in the Law.
Article 11 repealed by paragraph 1. º of the single derogation provision of Law 8/2013, of 26 June, on urban rehabilitation, regeneration and renewal (“B. O. E.” 27 June), in force: 28 June 2013
Article 12 repealed by paragraph 1. º of the single derogation provision of Law 8/2013, of 26 June, on urban rehabilitation, regeneration and renewal (“B. O. E.” 27 June), in force: 28 June 2013
1. The governing bodies of the community are as follows:
a) The Board of owners.
b) The President and, where appropriate, the Vice-Presidents.
c) The secretary.
(d) The administrator.
In the statutes, or by majority agreement of the Board of Owners, other governing bodies of the community may be established, without this implying any detriment to the functions and responsibilities vis-à-vis third parties attributed to the foregoing by this Law.
2. The chairman shall be appointed, from among the owners, by election or, alternatively, by rotation or by drawing lots. The appointment shall be compulsory, but the appointed owner may request the judge to replace him or her within one month of his or her accession to the office, giving the reasons for doing so. The judge, through the procedure established in article 17.7. ª, will decide the pertinent matters, designating in the same resolution the owner who will replace, if applicable, the president in the position until a new appointment is made within the term determined in the judicial decision.
The judge may also be summoned if, for any reason, it is impossible for the Board to appoint a president of the community.
Article 13, number 2, drafted by the second final provision of Law 42/2015, of 5 October, amending Law 1/2000, of 7 January, on Civil Procedure (B. O. E. 6 October), in force: 7 October 2015
3. The president shall legally represent the community, both in court and outside, in all matters affecting it.
4. The existence of Vice-Presidents shall be optional. They shall be appointed by the same procedure as that laid down for the appointment of the chairman.
It is incumbent upon the Vice-Chairman, or the Vice-Chairmen by order, to replace the Chairman in the event of his absence, vacancy or impossibility, and to assist him in the exercise of his functions in accordance with the terms established by the Board of Directors.
5. The functions of the secretary and the director shall be exercised by the president of the community, unless the statutes or the General Meeting of owners by majority resolution, provide for the provision of said offices separately from the presidency.
6. The offices of secretary and director may be held in the same person or appointed independently.
The position of administrator and, where appropriate, secretary-administrator may be exercised by any owner, as well as by individuals with sufficient professional qualifications and legally recognized to perform such functions. It may also be held by corporations and other legal persons on the terms established in the legal system.
7. Unless otherwise provided in the statutes of the community, the appointment of the governing bodies shall be made for a period of one year.
The appointed members may be removed from office before the expiration of the mandate by resolution of the Meeting of Owners, convened in an extraordinary session.
8. Where the number of homeowners or premises in a building does not exceed four, they may benefit from the administration regime of article 398 of the Civil Code, if expressly provided for in the statutes.
Article 13 drafted by Law 8/1999,6 April (“B. O. E.” 8 April), on Reform of Law 49/1960,21 July, on Horizontal Property.
It is the responsibility of the Board of Owners:
a) Appoint and remove the persons who exercise the positions mentioned in the previous article and resolve the claims that the owners of the flats or premises make against their actions.
(b) Approve the forecast expenditure and income plan and related accounts.
c) Approve the budgets and execution of all the farm’s repair works, whether ordinary or extraordinary, and be informed of the urgent measures taken by the administrator in accordance with the provisions of article 20. c).
d) Approve or reform the statutes and determine the rules of the internal system.
e) To know and decide on other matters of general interest to the community, agreeing on the necessary or convenient measures for the best common service.
Article 14 drafted by Law 8/1999,6 April (“B. O. E.” 8 April), on Reform of Law 49/1960,21 July, on Horizontal Property.
1. Attendance at the Board of Owners shall be personal or by legal or voluntary representation, sufficient to accredit a written document signed by the owner.
If any flat or premises belonged “pro indiviso” to different owners they will appoint a representative to attend and vote at the meetings.
If the dwelling or premises are in usufruct, attendance and voting shall correspond to the knot owner, who, unless otherwise stated, shall be understood to be represented by the usufructuary, with express delegation being required in the case of the agreements referred to in the first rule of article 17 or extraordinary and improvement works.
2. Owners who, at the time of the meeting, were not up to date with the payment of all debts due to the community and who had not challenged the same or proceeded to the judicial or notarial recording of the amount owed, may participate in its deliberations but shall not have the right to vote. The minutes of the General Meeting shall reflect the owners deprived of the right to vote, whose person and participation in the community shall not be counted in order to reach the majorities required by this Law.
Article 15 drafted by Law 8/1999,6 April (“B. O. E.” 8 April), on Reform of Law 49/1960,21 July, on Horizontal Property.
1. The Board of Owners shall meet at least once a year to approve the budgets and accounts and on such other occasions as the President may deem appropriate or as requested by one-quarter of the owners, or a number of them representing at least 25 per cent of the participation fees.
2. The notice of the General Meetings shall be issued by the Chairman and, in his absence, by the promoters of the meeting, indicating the matters to be dealt with, the place, day and time at which it will be held in the first or, where appropriate, second notice, summonses being made in the manner established in Article 9. The summons shall contain a list of the owners who are not up to date in the payment of the debts due to the community and shall warn of the deprivation of voting rights if the cases provided for in Article 15.2 occur.
Any owner may request that the Board of Owners study and decide on any matter of interest to the community; to this end, it shall send a written letter, clearly specifying the matters it requests to be dealt with, to the president, who shall include them in the agenda of the next General Meeting to be held.
If at the meeting of the General Meeting, at first call, a majority of the owners representing, in turn, do not attend, the majority of the participation fees shall be called for a second call, this time without being subject to a quorum.
The General Shareholders’ Meeting shall be held at the place, date and time indicated in the first summons, and may be held on the same day if half an hour has elapsed since the previous one. Failing this, it shall be reconvened, in accordance with the requirements established in this article, within eight calendar days of the Meeting not held, in which case summonses shall be issued at least three days in advance.
3. The summons to the Annual Ordinary Meeting shall be made at least six days in advance, and for extraordinary meetings, as far as possible, so that all interested parties may be informed. The General Meeting may meet validly even without the call of the Chairman, provided that all the owners attend and so decide.
The agreements of the Board of Directors shall be subject to the following rules:
1. The installation of common infrastructures for access to telecommunication services regulated by Royal Decree-Law 1/1998, of 27 February 1998, on common infrastructures in buildings for access to telecommunication services, or the adaptation of existing infrastructures, as well as the installation of common or proprietary systems for the use of renewable energies, or infrastructures necessary to access new collective energy supplies, may be agreed, at the request of any owner, by
The community may not pass on the cost of the installation or adaptation of such common infrastructures, or those derived from their conservation and subsequent maintenance, to those owners who have not voted expressly in favour of the resolution at the General Meeting. However, if they subsequently request access to telecommunications services or energy supplies, and this requires taking advantage of new infrastructures or the adaptations made to existing infrastructures, they may be authorised provided that they pay the amount corresponding to them, duly updated, applying the corresponding legal interest.
Notwithstanding the provisions of the previous paragraph regarding maintenance and upkeep expenses, the new infrastructure installed will be considered, for the purposes established in this Law, as a common element.
2. Without prejudice to the provisions of Article 10.1 (b), the execution of works or the establishment of new common services aimed at removing architectural barriers that hinder the access or mobility of disabled persons and, in any case, the establishment of lift services, even when they involve the modification of the constitutive title, or of the statutes, shall require the favourable vote of the majority of the owners, who, in turn, represent the majority of the quotas
When valid agreements are validly adopted to carry out accessibility works, the community will be obliged to pay the expenses, even if their annual amount exceeds twelve ordinary monthly payments of common expenses.
Judgment TS (1st Chamber) of 23 December 2014, Rec. 1428/2012, declares as jurisprudential doctrine that “for the adoption of agreements directly associated with the agreement to install the elevator, including that relating to the distribution of the expenses of the latter, even if they involve the modification of the constituent title or the Statutes, the same majority as that required by the Horizontal Property Law for the main agreement to install the elevator, without in any case such agreements being capable of seriously injuring any owner”.
3. The establishment or abolition of porter’s, concierge, guard or other common services of general interest, whether or not they involve a modification of the constitutive title or statutes, shall require the favourable vote of three fifths of the total owners who, in turn, represent three fifths of the participation fees.
The same regime shall apply to the lease of common elements which are not assigned a specific use in the building and the establishment or removal of equipment or systems, other than those referred to in paragraph 1, which are intended to improve the energy or water efficiency of the building. In the latter case, agreements validly adopted pursuant to this rule are binding on all owners. However, if the equipment or systems are used exclusively for the purpose of adopting the agreement, a vote in favour by one third of the members of the community, representing one third of the participation quotas, shall suffice for the adoption of the agreement.
4. No owner may demand new installations, services or improvements not required for the proper conservation, habitability, security and accessibility of the property, according to its nature and characteristics.
However, if, by the favourable vote of three fifths of the total owners, who represent three fifths of the shares, valid agreements are adopted to carry out innovations, new installations, services or improvements not required for the proper conservation, habitability, security and accessibility of the property, which are not enforceable and whose installation fee exceeds the amount of three ordinary monthly payments of common expenses, the dissident does not result in If the dissident wishes, at any time, to participate in the advantages of innovation, he or she will have to pay his or her share of the costs of implementation and maintenance, duly updated by applying the corresponding legal interest.
Innovations that render any part of the building unusable for the use and enjoyment of an owner may not be made without the owner’s express consent.
5. The installation of an electric vehicle recharge point for private use in the building’s car park, provided that it is located in an individual garage space, will only require prior communication to the community. The cost of this installation and the corresponding electricity consumption shall be borne entirely by the person or persons interested in it.
6. Agreements not expressly regulated in this article, which imply the approval or modification of the rules contained in the title to the horizontal property or in the statutes of the community, will require unanimity of the total of the owners that, in turn, represent the total of the participation quotas.
7. For the validity of the other agreements, a majority vote of the total owners representing a majority of the shares shall be sufficient. The resolutions adopted by the majority of the attendees shall be valid at the second call, provided that it represents, in turn, more than half of the value of the fees of those present.
When the majority cannot be achieved by the procedures established in the previous sections, the Judge, at the request of a party deduced in the month following the date of the second General Meeting, and hearing the contradictors previously mentioned, shall resolve in equity what is applicable within twenty days, counted from the request, making a decision on the payment of costs.
8. Except in the cases expressly provided for in which the cost of the services cannot be passed on to those owners who have not expressly voted in favour of the resolution at the Shareholders’ Meeting, or in cases where the modification or amendment is made for private use, those owners absent from the Shareholders’ Meeting, duly mentioned, who, once informed of the resolution adopted by these shareholders, in accordance with the procedure established in Article 9, have not made known, shall be counted as votes in favour.
9. The agreements validly adopted pursuant to this article bind all owners.
10. In the event of any disagreement on the nature of the works to be carried out, the Board of Owners will resolve the matter. Interested parties may also request arbitration or technical advice under the terms established in the Law.
11. The payments for the payment of improvements made or to be made in the property will be paid by the owner at the time of the payment of the amounts affected by the payment of such improvements.
Article 17 drafted by number five of the first final provision of Law 8/2013, of 26 June, on urban rehabilitation, regeneration and renewal (“B. O. E.” 27 June), in force: 28 June 2013
1. The agreements of the Board of Owners shall be subject to challenge before the courts in accordance with the provisions of general procedural law, in the following cases:
a) When they are contrary to the law or the statutes of the owners’ association.
b) When they are seriously detrimental to the interests of the community in the interest of one or more owners.
(c) where they are seriously prejudicial to an owner who has no legal obligation to bear them or where they have been adopted in an abusive manner.
2. Those owners who have saved their votes at the Shareholders’ Meeting, those absent for any reason and those who have been improperly deprived of their right to vote, shall be entitled to contest these resolutions. In order to contest the resolutions of the General Meeting, the owner must be up to date in the payment of all the debts due to the community or proceed prior to the judicial recording thereof. This rule shall not apply to the challenge of the resolutions of the General Shareholders’ Meeting regarding the establishment or alteration of the participation quotas referred to in article 9 among the owners.
3. The action shall expire three months after the date of adoption of the resolution by the Owners’ Meeting, except in the case of acts contrary to law or statutes, in which case the action shall expire each year. For the absent owners, this period shall be calculated from the notification of the agreement in accordance with the procedure laid down in Article 9.
4. The challenge of the resolutions of the General Meeting shall not suspend their execution, unless the judge so provides, as a precautionary measure, at the request of the plaintiff, after hearing the community of owners.
1. The agreements of the Board of Owners shall be reflected in a book of minutes completed by the Registrar of Property in the manner prescribed by regulation.
2. The minutes of each meeting of the Board of Directors must state at least the following circumstances:
(a) The date and place of the event.
b) The author of the summons and, if applicable, the owners who promoted it.
c) Its ordinary or extraordinary nature and the indication of its holding on first or second call.
d) List of all the attendees and their respective positions, as well as the represented owners, with an indication, in any case, of their participation fees.
(e) The agenda of the meeting.
f) The resolutions adopted, with an indication, if relevant for the validity of the resolution, of the names of the owners who voted for and against them, as well as the participation quotas they represent, respectively.
3. The minutes shall be signed by the chairman and secretary at the end of the meeting or within ten calendar days thereafter. The agreements shall be enforceable from the time of their conclusion, unless otherwise provided for by law.
The minutes of the meetings shall be forwarded to the owners in accordance with the procedure laid down in Article 9.
Defects or errors in the minutes shall be made good, provided that they unequivocally state the date and place of the meeting, the owners attending, present or represented, and the resolutions adopted, indicating the votes for and against, as well as the shareholding quotas that are respectively implied and signed by the chairman and the secretary. This correction must be made before the next meeting of the Board of Owners, which must ratify the correction.
4. The secretary shall keep the minutes books of the Meeting of Owners. Likewise, during the five-year period, it must keep the convocations, communications, proxies and other relevant documents of the meetings.
It’s up to the administrator:
a) To watch over the good regime of the house, its facilities and services, and to make appropriate warnings and warnings to the owners to this effect.
(b) Prepare in good time and submit to the Board the plan of foreseeable expenditures, proposing the means necessary to meet them.
c) To attend to the conservation and entertainment of the house, arranging repairs and measures that are urgent, immediately reporting them to the president or, as the case may be, to the owners.
d) Execute the agreements adopted in relation to works and make payments and collect any receipts.
e) Act, where appropriate, as secretary of the Board and make available to the owners the documentation of the community.
(f) All other powers conferred by the Board.
1. The obligations referred to in Article 9 (e) and (f) shall be fulfilled by the owner of the dwelling or premises at a time and in a manner determined by the Board. Otherwise, the chairman or the administrator, if so agreed by the board of owners, may demand it judicially through the order for payment procedure.
2. The use of the order for payment procedure shall require the prior certification of the agreement of the Meeting approving the settlement of the debt with the owners’ association by the person acting as secretary of the same, with the approval of the president, provided that such agreement has been notified to the owners affected in the manner established in Article 9.
3. The amount claimed under the preceding paragraph may be increased by the costs of the preliminary order for payment, provided that it is documented and accompanied by proof of such costs.
4. Where the previous owner of the dwelling or premises is jointly and severally liable for the payment of the debt, the original request may be made against him, without prejudice to his right to claim against the current owner. The claim may also be directed against the registrant, who shall enjoy the same right mentioned above.
In all of these cases, the initial request may be made against any or all of the obligors.
5. Where the debtor objects to the initial request for an order for payment procedure, the creditor may request the attachment of sufficient assets of the debtor to meet the amount claimed, interest and costs.
The court shall, in any case, grant the lien without the creditor having to provide security. However, the debtor may reserve the lien by providing bank collateral for the amount for which it has been issued.
6. Where, in the initial application for an order for payment procedure, the professional services of a lawyer and a solicitor are used to claim sums owed to the Community, the debtor shall pay, subject in any event to the limits laid down in Article 394 (3) of the Code of Civil Procedure, the fees and rights accruing to both parties in respect of their participation, whether or not the debtor complies with the order for payment or is not brought before the court.
Where there is opposition, the general rules on costs shall be followed, although if the creditor obtains a judgment that is entirely in favour of his claim, the lawyer’s fees and the rights of the solicitor deriving from his intervention shall be included, even if it was not mandatory.
Article 21 drafted by number 2 of Final Provision 1. ª of Law 1/2000,7 January, of Civil Procedure (B. O. E.”8 January), in force: 8 January 2001
1. The owners’ association will be liable for its debts to third parties with all funds and credits in its favour. In the alternative, and after having requested payment from the respective owner, the creditor may apply to each owner who has been a party to the corresponding proceedings for the corresponding fee in the unsatisfied amount.
2. Any owner may object to the execution if he proves that he is up to date in the payment of all the debts due to the community at the time of the formal notice referred to in the previous paragraph.
If the debtor pays in the formal notice, the costs incurred up to that time shall be borne by the debtor in the proportionate part corresponding to him.
The horizontal property regime is extinguished:
1º For the destruction of the building, unless otherwise agreed. An estimate will be made when the cost of reconstruction exceeds 50 per cent of the value of the property at the time of the incident, unless the excess of such cost is covered by insurance.
2º By conversion into ordinary property or co-ownership.
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OF THE REGIME OF PRIVATE REAL ESTATE COMPLEXES
1. The special property regime established in article 396 of the Civil Code shall be applicable to private real estate complexes that meet the following requirements:
a) It is made up of two or more independent buildings or plots whose main destination is the dwelling or premises.
b) The owners of these properties, or of the dwellings or premises in which they are divided horizontally, with an inherent character to said right, participate in an indivisible co-ownership over other real estate, roads, facilities or services.
2. The private real estate complexes referred to in the previous paragraph may:
a) To be constituted as a single community of owners through any of the procedures established in the second paragraph of Article 5. In this case, they shall be subject to the provisions of this Law, which shall be fully applicable to them.
b) To become a grouping of owners’ associations. For this purpose, it will be required that the constituent title of the new grouped community be granted by the sole owner of the complex or by the presidents of all the communities called to integrate it, previously authorized by majority agreement of their respective Boards of owners. The constituent title shall contain the description of the complex as a whole and the elements, roads, facilities and common services. It shall also fix the participation quota of each of the integrated communities, which shall be jointly responsible for their obligation to contribute to the support of the general expenses of the grouped community. The title and statutes of the grouped community will be registrable in the Land Registry.
3. The grouping of communities referred to in the previous paragraph shall enjoy, for all purposes, the same legal status as the owners’ communities and shall be governed by the provisions of this Law, with the following specialties:
a) Unless otherwise agreed, the Board of Owners shall be made up of the presidents of the communities belonging to the grouping, who shall represent all the owners of each community.
b) The adoption of resolutions for which the law requires qualified majorities shall, in any case, require the prior obtaining of the majority in question in each of the Boards of Owners of the communities that make up the grouping.
c) Unless otherwise agreed by the Board, the provisions of article 9 of this Law on the reserve fund shall not be applicable to the grouped community.
The competence of the governing bodies of the grouped community extends only to the real estate, roads, common facilities and services. Their agreements shall in no way affect the powers vested in the governing bodies of the owner’s associations forming part of the grouping of communities.
4. For private real estate complexes that do not adopt any of the legal forms indicated in section 2, the provisions of this Law shall be applicable, in addition to the agreements established between the co-owners, with the same specialities indicated in the previous section.
1. Without prejudice to the provisions adopted by the Autonomous Communities in the exercise of their powers, the constitution of the reserve fund regulated in Article 9.1. f) shall comply with the following rules:
(a) The fund shall be constituted at the time of approval by the Board of Owners of the regular budget of the community corresponding to the annual fiscal year immediately following the entry into force of this provision.
The new owner’s associations will constitute the reserve fund upon approval of their first regular budget.
(b) At the time of its establishment, the fund shall be endowed with an amount not less than 2.5 per cent of the regular budget of the community. To this end, the owners must make the necessary contributions in advance based on their respective share of ownership.
(c) When the regular budget is approved for the annual period immediately following the year in which the reserve fund is established, its allocation shall reach the minimum amount provided for in Article 9.
2. The provisioning of the reserve fund may not, at any time during the financial year, be less than the legal minimum laid down.
The amounts drawn from the fund during the financial year to cover the costs of the works or actions included in Article 10 shall be taken into account as an integral part of the fund for the purpose of calculating its minimum amount.
At the beginning of the next financial year, the necessary contributions shall be made to cover the sums drawn from the reserve fund in accordance with the preceding paragraph.
This Law shall govern all the communities of owners, whatever the moment in which they were created and the content of their statutes, which may not be applied in contradiction with the provisions of this Law.
Within two years from the date of publication of this Law in the Official State Gazette, the communities of owners must adapt their statutes to the provisions of this Law insofar as they are in contradiction with its precepts.
After two years, any of the owners may apply to the courts for the adaptation provided for in this provision by the procedure referred to in Article 16 (2).
In the current regulatory statutes of the property by flats, in which the right of pre-emption and retraction is established in favor of the owners, the same modified ones will be understood in the sense of being without effectiveness such right, except that, in a new meeting, and by majority that represents at least 80 percent of the owners, the maintenance of the mentioned pre-emption and retraction rights in favor of the members of the community will be agreed.
Note that the Sole Final Provision of Law 8/1999,6 April, on the Reform of Law 49/1960,21 July, on Horizontal Property (“B. O. E.” 8 April), states that:”The statutes of the communities of owners shall be adapted, within one year, to the provisions of this Law.
Any provisions that conflict with the provisions of this Law are hereby repealed.
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