 What you need to Know
:: If you own any type of property in Spain, it is likely that you are subject to the ‘Community of Owners’ system, under which the terms of neighbours’ cohabitation are governed.
This system comes in to practice when there are two or more owners who have co-title of services or common elements, within the same building or residential complex.
In this case, the Community of Owners system is governed through the ‘Community Statutes’ or by-laws. In addition, the ‘Horizontal Property Law’ applies as a supplementary regulation on those matters that are not ruled by the statutes. If no statutes exist, it applies in full.
The Community of Owners is formed under the terms of a notarised deed of horizontal division - known as a constitutional deed - which is granted once the construction is completed and wherein the following elements will be stated:
•Residences resulting from that construction process.
•Areas of common use
•Distribution of quotas amongst the owners for them to proportionally contribute to the necessary costs, such as maintenance.
Thereafter, each property becomes an independent registered estate, with a determinate quota calculated on the basis of certain criteria, usually the useful surface of the plot or house and the foreseeable use of the common services.
The deed of horizontal division is formalised by the statutes, or basic internal regulations. In essence, they rule on the Community of Owners, governing body, general assembly and owners’ rights and duties. They are compulsory for anyone who owns a property in Spain.
However, many Communities of Owners are created without regard to the formal steps and requirements and do not observe the compulsory rules that assure that decisions are duly taken.
Moreover, since many owners are not permanent residents in Spain, it is not unusual to find that those who are permanent residents there take the opportunity to use the Community of Owners to satisfy their own needs.
• Control
You may wonder how this can affect your property. The Community of Owners is represented by the democratically elected governing body - President, Secretary and Administrator - which must decide what your rights and duties are. They also decide how the annual budget is to be spent, and many other significant questions. But how do you know that the decisions made by the Community of Owners are under the right control? Even more importantly, how can you be sure that the Community of Owners is legal?
This can become an even more complicated issue if the complex or urbanisation construction and infrastructure works are still being carried out. It may be the case that your Community of Owners becomes a specific entity that may collaborate with the town hall towards the completion of construction works. This will result in more activity and costs to be controlled. It also means that the urban planning rules must be observed and a good relationship with the town hall must be established.
Again, many questions may arise. How can you be sure that the works are being duly undertaken and your complex or urbanisation will be completed? And what about expected conservation costs? Are these planned and is the town hall aware of it?
It is essential that any owner who suspects that something is not right with the Community of Owners, undertakes comprehensive research to find out whether it was, in fact, legally created and that its statues are in proper accordance with the Horizontal Property Law. Owners may also need to check if it has been duly registered and that the town hall has proper records of all the development works and infrastructures approved.
If your Community of Owners is not working properly, from the legal point of view, do not lose time to react. These agreements and decisions can be challenged in the courts, under certain terms, but only during a limited period of time - usually three months or one year from the date of agreement or notification, depending on the kind of infringement. It is important to note that ‘challenging’ implies that one is not in agreement with certain decisions and is providing evidence of such disconformities by taking legal action through the Court of Justice. It is essential to note that a challenge to agreements does not stop them being executed, unless the Court of Justice states so as a provisional measure of having required this from the claimant and having previously heard from the Community of Owners. ::
By Susana Redondo
Irwin Mitchell
902 150 105
imabogados@irwinmtichell.com |
