Comunidad de Propietarios: Avoid Problems with Your Neighbours in Spain

Raymundo Larraín Nesbitt - Lawbird Legal Services
26th of June 2009

On buying property on a development or in an apartment block you will become a member of what is known as a “Community of Owners” (Comunidad de Propietarios, CO for short). A Spanish Comunidad de Propietarios is composed of all the owners of property within the same development or building.

The gist of this article is to give some guidance on what becoming an owner in a community implies, with particular focus on Andalucía. I strongly recommend reading the Commonhold Act (English) itself as I have considerably abridged the sections pursuant to it, on reviewing them, giving only a brief overview of what they entail.

General Legal Framework

There is a general nationwide legal framework acting as a common denominator to all communities in Spain, set out by the Commonhold Act 49/60 (aka Ley de Propiedad Horizontal orHorizontal Property Act) and by the Spanish Civil Code (arts 396 et seq). The Law on Horizontal Property was amended most significantly by Law 8/99, amongst others, to update it to social reality.

Bylaws and Rules of the Comunidad de Propietarios

In addition to the above general laws, the day-to-day running of each community is really determined by the Communities’ Bylaws (Statutes) which are drafted at the time of lodging the Master Deed (aka Escritura de División Horizontal or Horizontal Deed). Unanimity is required to amend either the Master Deed or the Community Statutes (arts 5 and 17). So in practice it’s quite a feat to change either of them.

That’s why a community may, at its discretion, approve its own Community Rules (in Spanish Normas de Regimen Interno or Normas de Funcionamiento de la Comunidad de Propietarios), not to be confused with Community Statutes. These Community Rules need only a simple majority vote to be approved and amended so as to waive the unanimity rule. They allow for great flexibility and will rule, for example, on communal services such as garbage collection or the use of communal facilities such as the swimming pool or lifts. They cannot rule on matters reserved only to Bylaws.

Normally, on buying off plan, there will be a clause by which the purchaser allows the developer to draft and lodge the Master Deed as well as the Community Statutes at the Land registry. Owners may later on amend these, complying with the strict majorities that are required by the Commonhold Act (unanimity).

This means that every development may enact their particular laws governing it but always subject to, and, in compliance with the general legal framework that must be respected at all times. Bylaws will rule for example the Community’s governing bodies such as the need or not of the role of a vice-president or how must the owners be notified in advance of an owner’s assembly.

Bylaws stem from Spain’s Commonhold Act and adapt it to the requirements of each particular Community of Owners.That’s why each Comunidad de Propietarios has its own unique Bylaws, tailored to suit their individual needs. Naturally, in this article I can only offer a general overview of the shared legal framework and concepts which underpin all communities without focusing on particular Bylaws, which are unique to each Community of Owners.

Commonhold Quota

On drawing up the Master Deed before a Notary, every property within the community is assigned a quota or percentage thereof. This quota is composed both of privative and communal elements which are assigned to each property. Store rooms and garages are included as well for this purpose.

This quota is important mainly for two reasons:

Because the expenses of the community will be allocated in proportion to your quota. So the larger the quota, the more you will have to pay.
Secondly, on voting at owners’ assemblies, the quotas need to be tallied for majority vote purposes. So, each owner does not equate to one vote. There may be a single owner, such as a developer, holding a significant communal quota which translates into great voting power. The resolutions reached bind all units within, regardless of whether they cast an opposing vote as majority rules apply (read below).

Owners’ Duties

Section 9 rules them in detail. The main duty will be, of course, to contribute to the maintenance and financial upkeep of the Community of Owners.

Failure to pay the community fees will result in the Community of Owners placing a lien against your property and possibly auctioning it off. This legal procedure in Spain works surprisingly efficiently. You have been warned!

This important article mentions as well the endowment of the communities mandatory reserve fund, in accordance to each owner’s commonhold quota. The purpose of this fund is to create a financial pool for the maintenance and repair of the building i.e. façade’s flaked painting or lift repair work. This reserve fund shall be endowed with an amount not lower than five percent of its last ordinary budget. Its funds will be used as well to pay for the building’s insurance cover.

On buying a resale in a community, the new owner will be held liable for the prior owner’s communities’ debts for the current year of transfer of ownership as well as the natural year immediately precedent (art 9 e). The property itself will be burdened with a lien for unpaid communal debts.

Which is why under law, the signing of the deed of transfer of ownership requires a Communities’ certificate stating that communal fees are up-to-date for that unit, signed by the communities’ administrator. The purchaser can however waive this requirement voluntarily.

Governing Bodies of a Comunidad de Propietarios

Art 13 establishes the governing bodies are the Owners’ General Assembly (whether annual or extraordinary), the president (vice-presidents are optional), the secretary and the administrator.

Presidents and vice-presidents must be appointed from among unit owners only. The roles of secretary and administrator can be held by unit owners as well as by outsiders providing the latter hold the necessary professional qualifications and are legally licensed to perform such roles.

The Statutes will be the ones which detail exactly what roles exist in each Community of Owners.

Community of Owners’ Assembly (AGM’s and EGM’s)

At least once a year an AGM will be called to approve the budget and accounts. An EGM may additionally be called at anytime, needing 25% of the unit owners’ quotas.

The notification must be given with a minimum of 3 days’ notice. This creates practical problems to non-residents owning second homes in Spain. Therefore, communities with a high number of non-resident owners may include in their Bylaws more realistic notices of, say, 14 days and to be notified by email in addition to placing it on the Community’s Notice Board. There’s freedom and flexibility to rule on this as each community deems fit in accordance to their own needs and circumstances.

Majority and Unanimity Votes

Section 17 deals with when unanimity votes are required. Basically, unanimity is necessary for modifying the rules contained, either in the Master Deed or in the Community’s Bylaws.

A majority vote (three fifths of the owners’ assessed quotas) is required for things such as the lift service, janitors, security services or any other common service or facility. This type of majority vote will be the one used to decide on the Community Rules. Proxy votes are also allowed. Only owners who are up-to-date with their community fees may vote at owners’ assemblies.

You may find that in new unsold off plan developments, a developer may hold the majority vote as he still holds a large stock of unsold units. Conversely, it can be its lender, if they have taken over the developer’s units. Either way, they are both obliged to contribute to the communities’ upkeep, paying their communal fees in proportion to their communal quotas, like everyone else.

Resolutions of the General Assembly

Section 19 deals with the recording of the resolutions reached. They will be recorded in a book of minutes, validated and stamped by the Land Registrar. A copy of the meeting’s minutes will be sent to each owner with the adopted resolutions following the AGM or EGM. The secretary will act as the custodian of the general meetings minutes book.

Challenging the General Assembly’s resolutions

Section 18 rules on how assembly resolutions can be challenged at court.

This can be done on three accounts:

Whence such resolutions are contrary to Law or the Community Statutes;
On them being seriously detrimental to the interests of the community and benefit one or several unit owners.
Whence they are seriously detrimental to some unit owner who has no legal obligation to sustain such detriment or when they have been adopted in abuse of power.

There’s a deadline of just 3 months to challenge them after they were adopted or else a year if they are contrary to Law or the Community Statutes. Only owners who are up-to-date with their community fees may challenge community resolutions before a court. Alternatively they can lodge the owed amounts before the law court prior to litigating.

Comunidades de Propietarios in Andalucía

Following arts 7 & 9 of Decree 218/2005, off plan vendors of property located within the autonomous region of Andalucía must hand over the DIA (Documento Informativo Abreviado) to purchasers. The DIA is the Spanish equivalent of the UK’s HPI, Home Purchase Information, or Seller’s pack. Both the Community’s Statutes and Community Rules must be included in the DIA pack.

Conclusion

The bottom line is that Community Statutes or Bylaws are the ones that really rule each community and are unique. No community has the same statutes as another.

It is always highly advisable that, prior to purchasing property on a development, you always request a copy of the Community Statutes, known in Spanish as Estatutos de la Comunidad de Propietarios, as well as the Community Rules, if existent. You may avoid unpleasant surprises, such as communities that ban domestic animals or even piano players!

Communities of Owners should be run, in theory, like small tidy democracies. Well, that’s the theory anyhow. In practice, they resemble more dictatorships with full blown egos as many owners can vouch for. I would advise you bring your tin hat to owners’ assemblies and prepare for some serious and protracted trench warfare, whereby each owner will hold his own ground, yielding occasionally to fleeting interests.

Maybe it’s a good idea to bring along a Spanish lawyer as added reinforcements!

Good luck; trust me, you’ll need it!

Discuss this Article

Lynda Cripps Says:

Sun, Jun 28th 2009, 10:22
Has anyone any answers to my problem. I have lived in a block of 4 apartments for over 23 years. My neighbours to the side have always maintained their own and I and my late husband have maintained our side without asking for any monetary contribution from our neighbours below apart from painting the exterior. The barbecue, front walls & pillars, we have done at our cost and I have carried on since my husbands death. The driveway which is communal, they refuse to clean because it is "not their mess", it's caused by a pine tree in next door. The exterior painting was last done over 4 years ago, is in a bad state, again we have painted the bottom half each year because of flaking and green moss, now my neighbours refuse to pay half to have it done and insist I pay to have the top done and they will do their own. Where do I stand legally?
Lawbird Lawyer Says:

Mon, Jun 29th 2009, 10:02
Dear Madam, As explained in the article above, you all have to get together at least once a year calling an AGM. In that AGM you can go over issues such as approving new actions (cleaning the driveway from pine cones) and adopting a budget that has to be approved by yourselves. One communer cannot adopt unilaterally decisions (even if it benefits the communityt as a whole) without having reached a consensus. CO should be run democratically. All neighbours should be contributing financially to the upkeep of the CO as explained in the article (statute nine of the Commonhold Act) in proportion to their assigned commonhold quota. Yours faithfully, Raymundo Larraín Nesbitt
Arudelhoff Says:

Sat, Aug 1st 2009, 22:18
Dear Sir/Madam We live in a community of 8 villas and share a pool and community garden. Before we bought the place, there was a neighbour (a former president) who had illegally ie without community permission extended his property by almost twice. A few other neighbours have followed suit. A new neighbour has just moved in and wants to close their terrace. All these changes/extensions have greatly altered the coefficient of the community. How can we go about changing the quota when it is pretty obvious those who have extended will not agree to it. We can legally make them agree to changing the quota??
Lawbird Lawyer Says:

Mon, Aug 3rd 2009, 08:15
Dear Sir/Madam, First of all these extensions may not be legal. Supposing they are legal, these owners must pay the Town Hall the tax for building the extensions. Following that, a new build deed would have to be done before a Notary whereby the extension of the properties is lodged at the land registry. This deed then has to be registered at the land registry. Only then will the description of the properties match reality. Then you would all have to agree unanimously into amending the Master deed of your Community of Owners to apply the new communal quotas. Please read my article on the last point: Comunidad de Propietarios: Avoid Problems with Your Neighbours in Spain - 26th June 2009 Bylaws and Rules of the Comunidad de Propietarios In addition to the above general laws, the day-to-day running of each community is really determined by the Communities’ Bylaws (Statutes) which are drafted at the time of lodging the Master Deed (aka Escritura de División Horizontal or Horizontal Deed). Unanimity is required to amend either the Master Deed or the Community Statutes (arts 5 and 17). So in practice it’s quite a feat to change either of them. Yours faithfully, Raymundo Larraín Nesbitt
Peter Meadows Says:

Sat, Sep 5th 2009, 12:09
We have a neighbour who has a dog that keeps us awake for hours. She is renting from the owner and the dog is causing problems that breach one of our community rules. What power do we have to change the situation?
Lawbird Lawyer Says:

Mon, Sep 7th 2009, 09:18
Dear Mr Meadows, You are in your right to complain. You should lodge a complaint before the President of your community so he communicates with the landlord/tenant to muffle the dog. If that doesn't work, then I suggest you file a police report against her for the barking noises at night. People's right to sleep cannot be overlooked. Yours faithfully,
David Williams Says:

Sat, Sep 12th 2009, 13:15
At our recent AGM of 16 properties, those present voted to change unanimous voting to majority voting. Despite clarification from the management company this went ahead and all subsequent voting was based on a pure majority and not 3/5th majority. The Vice President, in the chair, and the management company ignored the fact that there were at least 4 objections to changing to majority voting. As a result of their self interests, community charges are now equal and not proportionate, and the majority of previous agreements were overturned. This is clearly illegal as the law states that it requires unanimity to change the Statutes, and this was taken on a majority vote. My problem is how to proceed now. I am aware that this can go through protracted court proceedings, but could this be resolved through calling an EGM? If so, how best to proceed. 25% of the community at least are prepared to call for an EGM, but does this have to be with the blessing of the new president who was at the meeting and spearheaded this campaign?
Lawbird Lawyer Says:

Mon, Sep 14th 2009, 09:37
Dear Mr Williams, To call an EGM you need either 25% of the commonhold quota or else 25% of the owners backing it. You will have to call it with a minimumn of two week's notice. You can have the President removed and overrule, as clearly illegal, the decision to amend unanimity votes. Spain Commonhold Act gives a great deal of liberty to communers to oversse their communities. But the red line is drawn on breaching it such as changing unanimity votes to a simple majority. If the EGM fails then you will have to challenge this resolution at court hiring a lawyer. Challenging the General Assembly’s resolutions Section 18 rules on how assembly resolutions can be challenged at court. This can be done on three accounts: When such resolutions are contrary to Law or the Community Statutes; On them being seriously detrimental to the interests of the community and benefit one or several unit owners. When they are seriously detrimental to some unit owner who has no legal obligation to sustain such detriment or when they have been adopted in abuse of power. There’s a deadline of just 3 months to challenge them after they were adopted or else a year if they are contrary to Law or the Community Statutes. Only owners who are up-to-date with their community fees may challenge community resolutions before a court. Alternatively they can lodge the owed amounts before the law court prior to litigating. Yours faithfully, Raymundo Larraín Nesbitt
John Castle Says:

Sat, Oct 17th 2009, 12:51
I often hear that there is a law forbidding the use of inflatables in swimming pools in the Valencian region but no-one is able to tell me which decree covers it. Is it possible to visit a government website to view this law, or to at least get the decree number and date? Kind regards.
Unregistered Says:

Wed, Oct 21st 2009, 20:32
No-one has ever been able to find this supposed law which bans inflatables in community swimming pools. I'm guessing that it's an invention of management companies, community presidents and killjoys who are hell bent on spoiling holidays for viisitors.
Lawbird Lawyer Says:

Thu, Oct 22nd 2009, 09:46
Dear Sir/Madam, I believe the laws on the matter of swimming pools strictly for the Comunidad Valenciana are decree 255/1994 amended by decree 97/2000. Some municipal (public) swimming pools do forbid the use of inflatables. Another matter is what communal pools within private gated communities agree on this. There's freedom on drafting the Internal Community Rules as per the article which starts this thread. Unsurprisingly 12 children drowned in swimming pools in Valencia in 2008. http://www.lasprovincias.es/valencia/20090709/valenciana/cerco-piscinas-privadas-20090709.html Yours faithfully,
Unregistered Says:

Mon, Oct 26th 2009, 01:11
Nobody has ever been able to produce the relevent decree banning li-lo's in swimming pools-because there isn't one. There is no law banning li-lo's from any pool private or otherwise. It is only kill-joy presidents and management companies who spread this nonsense. It's an urban myth, similar to the non-existant law that says you can't wash your car outside your own house because it wastes water. If you think about the irony in that, you cant use 50 litres of water once a week to wash your car but you can top your swimming pool up each day with 500 litres.
D barker Says:

Wed, Nov 18th 2009, 17:35
Has the president of the community to "sack" a member of the elected committee ? and then to tell all other members that any requests must go through him and not directly to the administrators
Lawbird Lawyer Says:

Wed, Nov 18th 2009, 17:50
Dear Sir or Madam, A Community President is powerless to "sack" fellow board members, That is something reserved to AMG' or EGM's. Queries from fellow commonholders should go through the President, yes. It is most sensible, unless the President is hiding something and becomes non-responsive. In which case an EGM may need to be called in. Yours faithfully,
D. Anchell Says:

Fri, Nov 20th 2009, 22:31
Can an owner who has an outstanding debt to the community become president of that community whilst still owing the debt?
D. Anchell Says:

Fri, Nov 20th 2009, 22:35
What circumstances can prevent an owner be elected as community president?
Lawbird Lawyer Says:

Tue, Nov 24th 2009, 13:41
Dear Sir, He can be elected President, but he cannot vote. Only commonholders who are up-to-date with their community fees can vote on EGM's or AGM's. Not much point really in electing a Community President who cannot vote (unless he clears his arrears) is there? I'm not aware of such circumstances. The Commonhold Act specifies the requirements that need to be fulfilled to be elected, not viceversa. As long as he/she is of legal age (>18 y.o.), owns a property in the Community he is eligible for the role of President. It's advisable not to elect neighbours which hold a Criminal record (i.e. embbezlement of funds). But that's just a recommendation. Yours faithfully,
Unregistered Says:

Tue, Nov 24th 2009, 20:51
Dear Sir, He can be elected President, but he cannot vote. Only commonholders who are up-to-date with their community fees can vote on EGM's or AGM's. Not much point really in electing a Community President who cannot vote (unless he clears his arrears) is there? I'm not aware of such circumstances. The Commonhold Act specifies the requirements that need to be fulfilled to be elected, not viceversa. As long as he/she is of legal age (>18 y.o.), owns a property in the Community he is eligible for the role of President. It's advisable not to elect neighbours which hold a Criminal record (i.e. embbezlement of funds). But that's just a recommendation. Yours faithfully, Thankyou for your response. The election of this person as president is advantageous to a number of residents financially. Surely one of the presidents duties is to ensure that any debt owed to the community by any owner is paid, if necessary by legal action through the courts. As it is doubtful the president will sue himself, how can he legally hold the office?
Lawbird Lawyer Says:

Wed, Nov 25th 2009, 11:32
Dear Sir or Madam, You're welcome. Indeed, its one of the -very- unpleasant tasks of Community Presidents to take to court fellow neighbours for lack of payment of Community fees. Post credit crunch this has become all too common and many Presidents are now caught in legal wrangles. It's a burden associated to the role of President as it entails great responsibility. Presidents have to pursue non-payers otherwise more will follow suit and the community as a whole will just crack down. Gardeners, security guards will stopped being paid, gardens will overgrow, green pools etc. Break-ins will become all too common as the whole place is in a derelict state, property values will plummet etc. It's just a downwards spiral that can serioulsy tarnish what would have been a nice development. It is highly doubtful that an elected President will pursue himself, granted. That is why it is not recommendable to choose as President someone who is in arrears as it stands to logic. At the end of the day its the individual who fits the role of President which makes all the difference. Yours faithfully, Raymundo Larraín Nesbitt
Sanita Says:

Mon, Jan 18th 2010, 00:33
Dear Raymundo Larrain Nesbitt. I would like to thank you for your articule..it was very helpfull.I have one problem,which I hope you might know answere.I am aware,taht property owners with unsetled debts can not vote..my problem is,I have property for 3 years,paid my maintance every year in time.As we never had any meetings or explanations where our money going..in 2009 I asked for all bills for this years maintance.I get got suspicios,when I been ignored for 6 months,alerted my neighbours,and refused to pay maintance until I see for what I am been paying all 2 years.We forming community only now,in 2010. How legal is to charge us for maintanace,when community dosent exsist?Is director in position to hide all bills and be bullie??Am I wrong not to pay,untill I know for what?I know I am risking loosing my vote,but I have a feeling I been robbed for 2 years. Woul love to hear what you think.Thank you in advance.
Lawbird Lawyer Says:

Mon, Jan 18th 2010, 10:50
Dear Sanita, Thank you for your kind words. As per my article, if you are not up-to-date servicing your community fees you are in no position to criticise, demand or vote in an AGM or EGM. In fact you are actually jeopardising your own property as the Community may decide to issue legal proceedings against you for unpayment in which case you may even lose your property as it can be seized and auctioned off publicly. Law courts are now clogged with such properties being auctioned off for unpayment. Having written the above, I fully understand your predicament and it's a matter that is becoming all too common in new developments on the Spanish costas. An AGM should be held mandatorily once a year. In those AGM's a full breakdown for the Communitie's running expenses is disclosed with a detailed breakdown and consequently voted upon by all commonholders which are up-to-date with their comunity fees. Make sure you bring along someone witha high command of Spanish to the first AGM as it's likely to be held in Spanish. The Community can decide for ensuing AGM's to hold it in both languages depending on what the majority of commonholders vote. In your particular case I advise you to first clear your arrears, hire a lawyer and force the Administrator and President to disclose a full breakdown with the running expenses requesting invoices where deemed necessesary. It is your right and that's why you are paying. Your President acnnot at anytime withhold information from yourselves such as bills or even bully you as you write. Misallocation of community funds is tantamount to embezzlement of funds which may even lead to a Criminal action being taken against the President and Administrator. Perhaps your President is someone who has been directly appointed by the developer. Maybe your community remains largely unsold and the majority of the votes are still in the hands of your developer. Is it the case? You are liable to pay for community fees as from the time a Licence of First Occupation is issued for your property by the Town Hall or as from the time you complete on it (in the case where no LFO has been issued yet). Please read my article for more details: The Licence of First Occupation Explained - 29th January 2009 Yours faithfully, Raymundo Larraín Nesbitt
Sanita Says:

Mon, Jan 18th 2010, 12:32
Dear Raymundo. Thank you very much for very quick response,it helped a lot. I asked lawer for advice(but I really hope ,we do not have to go to court),he is ready to take action,if I want to.His advise was to write last letter,send with recorded delivery and demand(on 10th time during 2009 and now) to see all invoices 7 days before our first meeting,as required by law..Then I will have inaf days to sort my fee..I think,director dont have any invoces and only money retyrn to owners will go via court.I been adviced to pay ONLY when I see for what Im paying.My property is second hand property..it was aparthotel before,now 2 blocks is still hotel and only my block with 20 apartments are privat.By the way,prezident lives in our block,and his apartments are 2 made in one and he pays only for one(thought is 2 times bigger that mine.)Is that correct?And I will ask again..are thay alloud to charge us,if it is not such a community here?Prezident was sole owner,now block 1 wants community and thay making up new rules every time thay wish!! Thank you for your response.. Regards..Sanita
Sanita Says:

Mon, Jan 18th 2010, 12:36
ps.I forgot to write,that during 2009 ,director changed my fee 3 times..To be honest at this moment I do not know which one to pay..probably I will go for cheapest one,if thay have a proof of money spending.Thank you.
Lawbird Lawyer Says:

Mon, Jan 18th 2010, 12:56
You're welcome Sanita. The advice from your lawyer is sound. You must in any case send him that registered letter prior to issuing legal proceedings against him. No, it's not legal as per my article. Community fees are paid on the basis of your quota on the commonhold. The larger your quote, the more you pay. That's the logic behind it. From what you write it would seem your President may have been tampering with the assigned quotas so as to pay as if he owned only one property. Very devious. Yours faithfully, Raymundo Larraín Nesbitt
Sanita Says:

Mon, Jan 18th 2010, 15:19
Raymundo..thank you very,very much!!You been very helpful with your advice.I am surethat I am ready for our meeting!!I will definetly let you know about outcome of it.. Yours sincerly..Sanita
Lawbird Lawyer Says:

Mon, Jan 18th 2010, 15:32
Anytime Sanita. Quoting my article on Community of Owners :) I would advise you bring your tin hat to owners’ assemblies and prepare for some serious and protracted trench warfare, whereby each owner will hold his own ground, yielding occasionally to fleeting interests. Maybe it’s a good idea to bring along a Spanish lawyer as added reinforcements! Good luck; trust me, you’ll need it Regards
David Says:

Sat, Jan 30th 2010, 00:14
How can we remove a president who only stays in place because of proxy votes at the AGM from owners who rent out their apartments commercially to whom he provides cleaning and laundry services? Such commercial renting is actually illegal on a residential complex on Mallorca but he encourages it to make money while our complex deteriorates.
Lawbird Lawyer Says:

Mon, Feb 1st 2010, 11:16
Dear Sir, A very interesting question. It's the Owners' Assembly (whether AGM or EGM) that has to vote him out. If the majority vote wants him to remain for vested interests you simply cannot oust him...at least formally. You can however easily bypass the above. The activity of commercial letting is illegal in Mallorca, as you correctly write, unless you are duly licensed to operate by the Town Hall which does not sem to be the case. If someone should report this illegal activity it would cease (besides being heavily fined) and the President would no longer have a reason to remain in his post... Yours faithfully, Raymundo Larraín Nesbitt
david Says:

Tue, Feb 2nd 2010, 20:16
Thank you Raymundo. Many owners have reported the renting owners to the Conselleria de Tourisme in Palma and their inspector has started to visit and interview renters after which proceedings have been started. That's great and no doubt the Summer will see many more visits and many more proceedings. However our President is very thick skinned and he won't allow us access to his rental customers to let them know they are breaking the law. That's crazy, of course, so I imagine that the next AGM in April will be very heated. My question is, does anyone have a direct right to sue the president for what he is doing in encouraging commercial renting on a residential complex and profiting from that renting by leaving his customers exposed to fines and our complex like a holiday camp. Many thanks, David.
Lawbird Lawyer Says:

Wed, Feb 3rd 2010, 09:34
Dear David, You are welcome. Of course, any commonholder may choose to sue him. Quoting my article which starts off this thread: Challenging the General Assembly’s resolutions Section 18 rules on how assembly resolutions can be challenged at court. This can be done on three accounts: 1. When such resolutions are contrary to Law or the Community Statutes; 2. On them being seriously detrimental to the interests of the community and benefit one or several unit owners. 3. When they are seriously detrimental to some unit owner who has no legal obligation to sustain such detriment or when they have been adopted in abuse of power. There’s a deadline of just 3 months to challenge them after they were adopted or else a year if they are contrary to Law or the Community Statutes. Only owners who are up-to-date with their community fees may challenge community resolutions before a court. Alternatively they can lodge the owed amounts before the law court prior to litigating. Yours sincerely,
Loopylou Says:

Tue, Feb 9th 2010, 16:08
If you want to be voted in as President or a member of the Committe do you have to attend the AGM of the community.
Lawbird Lawyer Says:

Wed, Feb 10th 2010, 10:08
Not really, no. There is no provision in the laws requiring this. But logicly it is highly recommendable if you want to stand up to be elected. Presumably there will be other contenders present at the AGM who will also opt for the post. Yours faithfully,
loopylou Says:

Thu, Feb 11th 2010, 13:28
We have a non-resident who wants to be elected onto the committee again for a second term. He will not be at the AGM in person. How would he be voted in.
Lawbird Lawyer Says:

Thu, Feb 11th 2010, 15:23
In that case someone acting on his behalf will have to propose him at the AGM. That is not an issue really. A vote is called and the winner is elected.
patoc Says:

Mon, Mar 1st 2010, 21:54
It has only recently emerged (after some 6 years) that our Community fees have been calculated incorrectly. Cuotas have been ignored and all fees rather than just the pool/garden maintenance costs as laid down in the Master deed, have been calculated on an equal basis. Ours is a 97 property Community raonging from a 70 sq m Apartment to a 600 sq m Villa. I have reported this to the President but had no response as yet, and I intend to put it on the next AGM agenda. As this is an ERROR that needs to be corrected, am I right to assume that no vote is required ( effectively this is an illegal change to fee calculations) ? If a vote IS required then are those Properties who have underpaid entitled to vote as technically they are in arrears ? How should I proceed with regards to previous over/underpayments - does this need a vote ? Any other advice or tips would be greatly appreciated
Unregistered Says:

Tue, Mar 2nd 2010, 00:10
Thank you Raymundo. Many owners have reported the renting owners to the Conselleria de Tourisme in Palma and their inspector has started to visit and interview renters after which proceedings have been started. That's great and no doubt the Summer will see many more visits and many more proceedings. However our President is very thick skinned and he won't allow us access to his rental customers to let them know they are breaking the law. That's crazy, of course, so I imagine that the next AGM in April will be very heated. My question is, does anyone have a direct right to sue the president for what he is doing in encouraging commercial renting on a residential complex and profiting from that renting by leaving his customers exposed to fines and our complex like a holiday camp. Many thanks, David. Would be very grateful if you could let me know how you go about denouncing the owners who let their property out to holiday lets even though it is not allowed. According to our Community Statutes, our complex is for vivienda. When we bought our property, the conveyancing lawyer told us that is was residential. However, at least two villas in our complex (of 10 detached villas) rent theirs out to holidaymakers. Is the Town Hall or the Consellaria of Tourism the point of action???
Lawbird Lawyer Says:

Tue, Mar 2nd 2010, 10:23
Dear Patoc, You will need to vote this at your next AGM or EGM, yes. The joint owners should not be regarded as "technically" in arrears as they cannot be held accountable out of no fault of their own on an "error" caused by the former administration. In fact such a relevant change may even require a unanimous vote as it affects the Master deed no less. Yours sincerely, Raymundo Larraín Nesbitt
Lawbird Lawyer Says:

Tue, Mar 2nd 2010, 10:30
Dear Sir or Madam, Even if the development is labelled as "residencial" it is not illegal to let properties out. Another matter is if the complex is located in one of Spain's regions in which a Letting licence is required i.e. Mallorca Quoting my next article: 8. Buy-to-Let If you are buying with a view to rent the property out, either as short or long-term, make sure the region of Spain in which you are buying allows for this. Some regions, i.e. Balearic Islands, have stringent regulations whereby a special licence is required to rent. Failure to comply will result in the Town Hall fining you. Disgruntled neighbours always make apt whistleblowers, so be warned. Other regions in Spain, such as Andalucía, do not require letting licences but do have their own regulation in place on letting out property. i.e. Decree 218/2005. And as a final word of caution, unless your property is in a prime location, do not rely on the let to offset the mortgage repayments. Yours faithfully, Raymundo Larraín Nesbitt
patoc Says:

Tue, Mar 2nd 2010, 15:11
Raymundo Thank you for the quick reply. Let me see if I understand you correctly. You say "You will need to vote this at your next AGM or EGM, yes." and also that " In fact such a relevant change may even require a unanimous vote as it affects the Master deed no less". Just to clarify the situation ; 1. The current allocation of fees is not only incorrect but also illegal as it does not reflect what is stated in the Master Deed 2. If the President / Administrator or anyone else wishes to CHANGE the way that fees are allocated into an equal share calculation this would need to be changed at an AGM / EGM, with a unanimous vote as the Master deed is to be changed. This cannot be done just because the Administrator made an error some time back. 3. As this would NOT get a unanimous vote to change I assume that the Administrator MUST immediately start calculating the fees correctly, as stated in the Master Deed How should I proceed with regards to previous over/underpayments - does this need a vote and would everyone THIS TIME ONLY get an equal vote, rather than one based on cuota ? Otherwise the Villa owners who should be paying much more would get too many votes. Many thanks Patrick O'Connell
Lawbird Lawyer Says:

Tue, Mar 2nd 2010, 15:53
Dear Mr O'Connell, Votes are based on the commonhold quota owners hold, as per my article and as per the law that rules all communal developments in Spain.- Commonhold Quota On drawing up the Master Deed before a Notary, every property within the community is assigned a quota or percentage thereof. This quota is composed both of privative and communal elements which are assigned to each property. Store rooms and garages are included as well for this purpose. This quota is important mainly for two reasons: 1.Because the expenses of the community will be allocated in proportion to your quota. So the larger the quota, the more you will have to pay. 2.Secondly, on voting at owners’ assemblies, the quotas need to be tallied for majority vote purposes. So, each owner does not equate to one vote. There may be a single owner, such as a developer, holding a significant communal quota which translates into great voting power. The resolutions reached bind all units within, regardless of whether they cast an opposing vote as majority rules apply (read below). I think we can safely assume your administrator knew they were being incorrectly calculated which is why I added apostrophes to the word error in prior post. This is hardly rocket science and it's how all communities fees are normally calculated throughout Spain, unless specifically agreed otherwise by unanimous vote. I'm not quite so sure this blatant "error" could go undetected for so long, six years no less. If all of you have have approved year after year the annual community budget there may be a right to have it calculated in such a way it can be argued by villa owners regardless of the Master deed. Am I correct in writing I have the sneaky suspicion you are going to face heavy opposition from the rest of the owners (namely those who own a villa, larger commonhold quota) to have the system amended as per the Master deed? You may even have to resort to litigating at court to push through what was agreed at the onstart in the Master deed on lodging the Horizontal Division deed before the Land registry. Yours faithfully, Raymundo Larraín Nesbitt
patoc Says:

Tue, Mar 2nd 2010, 17:07
Raymundo Thanks again for your quick response. Why was this not noticed before ? I think because we concentrated on what actual money was being spent and assumed (wrongly) that the Administrator could be trusted to allocate the fees correctly. Most owners are from the UK and the cuota system is unfamiliar therefore. It was only when a neighbour and myself looked into it more deeply, having read articles like yours, that we came across this error. The same President and Administrators have been in place for some 5 years now and this has not helped either. I am not sure that it was deliberate or just sheer incompetence but what I now know is that the many Apartment owners are subsiding the few Villa owners illegally and unjustly. You say " "you are going to face heavy opposition from the rest of the owners (namely those who own a villa, larger commonhold quota) to have the system amended as per the Master deed? I apolgise for being a little slow but I still do not undertand this. Regardless of when (or why) it was done, the system in place is illegal - an illegal change to the Master Deed has been made, and all I wish to see is the illegal change stopped and the correct amounts calculated as per the registered cuotas/master deed. Why can I not propose this illegal change offficially and, when the vote is not unanimous, get it voted off ? Regards Patrick O'Connell
Lawbird Lawyer Says:

Tue, Mar 2nd 2010, 17:28
You're welcome Mr O'Connell. I think you understand very well the gist of my reply. Regardless if the Master deed enshrines it you are going to face huge opposition from the villa owners and those with large quota share as they hold a vested interest in keeping the statu quo and not having the current system amended as its detrimental for them My view is that you are not going to sort it out amicably on your next AGM as you foresee and you will end up leading a protracted fight over the issue in a Spanish court. Again I repeat, I don't think it was a mistake because of incompetence, or maybe I'm just being oversuspicious. Best regards, Raymundo Larraín Nesbitt

View Full Thread

Navigation

Newsletter

Related Questions