COMMON CASES IN COMMUNITIES OF OWNERS IN SPAIN. HORIZONTAL PROPERTY.
We are inaugurating a section in which we are going to record the most frequent cases and questions that we are asked as well as cases that we have handled in this office and relevant sentences so that you can clear up or clarify doubts through this section.
What to do if the registered size of a property differs from the actual size of the shareholding in Spain?
This case is not so surprising and this office has recently been presented with this case, and the answer can only be clear and categorical as what is valid is the description and measurement in the Land Registry which determines the participation quota, so if you are in an identical situation you should try to modify the registry description and therefore affect the participation quota.
When we refer to discordance we contemplate both cases, whether the difference is greater or lesser.
The action is clear and is a judicial procedure as only a judicial pronouncement is valid to modify a registered description.
The co-owners who reside in a foreign country must be sued for non-payment of expenses in the place of the property, not in the place of their domicile abroad.
The community of owners is not obliged to sue the foreign co-owner in the country where he/she is domiciled and can do so where he/she has the debt, which is the place of the property, for assuming the agreement of the meeting to fix the unpaid quotas, as has been resolved by THE HIGH COURT OF JUSTICE OF THE EUROPEAN UNION in a judgement dated 8 May 2019.
The agreement to fix the instalments and settle the debt obliges him to pay in the place where the property is located. Failure to do so must be sued in the courts of the property.
Terraces on the roof of the building
The existing terraces on the roofs of buildings are common elements without prejudice to the use that the deed of Declaration of New Construction assigns to any owner.
Recently a person came to this office because he had closed a small portion of terrace that was not used by the Community. This portion was next to his terrace, and taking advantage of the fact that nobody was using it, he decided to annex it. However, when the Community became aware of this, it required him to revert the small terrace to its previous state.
We advised him of the need to do this, as the fact that this small portion of the terrace did not even appear in the New Construction and had not been assigned to him, did not make him entitled to own it. Therefore, he should cease its exclusive use and demolish the wall he had built to annex it.
Lifts
It is established as case law that the installation of a lift in a residents’ association that lacks this service, considered to be of general interest, allows the constitution of an easement with the appropriate compensation for damages. This is applicable even when the installation involves the occupation of part of a private space, provided that the legally required majorities for the adoption of such an agreement are met.
It is important to note that the consent of the directly affected co-owner is not required, as long as the imposed encumbrance does not entail a loss of habitability and functionality of his private space. This condition seeks to balance the general interest of the community with the individual rights of the affected owner.
‘It is declared as jurisprudential doctrine that for the adoption of agreements that are directly associated with the agreement for the installation of the lift, even if they imply the modification of the constitutive title, or of the bylaws, the same majority is required as the Horizontal Property Law requires for the main agreement for the installation of the lift’.
This doctrine was subsequently reiterated in the ruling of 7 November 2011. In it, after recalling the judgments of 18 December 2008 and relying on that of 13 September 2010, it clarifies the procedure and the requirements for taking significant decisions within a community of owners.
It states that ‘In short, for the adoption of agreements that are directly associated with the agreement to install the lift, even if they imply the modification of the constitutive title, or of the bylaws, the same majority is required as the Horizontal Property Law requires for such an agreement’.
This statement underlines the importance of following established legal procedures to ensure the validity and acceptance of proposed modifications in the community.
Distinction of common elements from private elements in Spain
The case is examined in which the lower court ruling, accepting the defendant’s argument, considers that the pipe that caused the damage in the flat below is a common element, the maintenance of which corresponds to the Community of Property Owners.
This decision was taken despite the fact that, at the time of the leaks, there were no individual water meters in the dwellings, and despite the fact that the pipe is located inside the dwelling owned by the defendant.
We cannot agree with this criteria. Despite the location of the pipe and the lack of individual meters at the time of the leaks, the responsibility and maintenance of the internal infrastructure raises important questions about the rights and duties of the individual owners vis-à-vis the community at large.
The fact that there are no individual meters does not add or subtract anything to the private or communal nature of the pipe, but what is decisive is whether it is located inside the dwelling and whether it provides exclusive service to the same, as stated in the judgement of this Section 5 of 23 May 2014. In other words, it must be analysed, on the one hand.
For further illustration, another Supreme Court ruling establishes that we must consider whether the pipe forms part of the general branch of the mains water distribution or whether it carries water exclusively to the dwelling.
According to the provisions of Article 396, the installations, pipes and conduits for drainage and for the supply of water, gas or electricity, including those for the use of solar energy up to the entrance to the private space, are considered common elements. This places the point of differentiation in the location of the element within the structure of the building.
Furthermore, it should be added that the service provided by the installation must be exclusive to that dwelling, in accordance with the provisions of article 3 of the Horizontal Property Law. This specification helps to clarify responsibility for the maintenance and ownership of specific installations within housing complexes, ensuring that each owner is aware of their rights and obligations regarding the infrastructures that directly affect them.
In the case of water pipes, a stopcock is usually located from the point where it exclusively serves an element and the owner can cut off or not the supply from that point and can make changes to the place through which they run, and therefore has the duty to conserve them and maintain them in suitable conditions of use, in accordance with article 9 of the Horizontal Property Law.
‘In the same sense, we can cite the judgement of the 11th Section of the Provincial Court of Madrid, dated 30-1-2006, which states that the pipes running through the private dwelling do not have the character of a common element, unless expressly established in the articles of association or by decision of the owners’ meeting adopted in legal form.
In the present proceedings there is no such declaration, and it is also irrelevant that there is no stopcock to shut off the supply to the property.
‘On the other hand, there is nothing to prevent the installation of such a tap by the owner inside the house, as long as it does not technically harm the installation as a whole. This is similar to what happens in the case of other supplies, such as water, whose pipes, as a whole, constitute a general service, but distinguishing the private pipes that run through the dwelling from the general pipes in common elements.
In this case, the downpipes and drains, such as the pipe in question, are private, unlike the electrical installation, which is considered to be general.
Joint Notifications
In the absence of this communication, the flat or premises belonging to the community shall be considered as the address for summons and notifications, and those delivered to the occupant of the same shall have full legal effect.
If it is impossible to serve a summons or notice on the owner in the place provided for in the previous paragraph, it shall be understood to have been served by posting the corresponding notice on the notice board of the community, or in a visible place of general use provided for this purpose.
A note must be included stating the date and reasons for this form of notification, signed by the person acting as secretary of the community, with the approval of the president.
The notification made in this way will produce full legal effects within three calendar days. This ensures that, even if the owner does not receive the notification directly, it is still valid and effective according to the law.
Is the landlord liable for damage caused by common elements?
According to settled case law of the Supreme Court, the landlord of commercial premises cannot be held liable for damage caused by defects in the common elements.
Article 1554 of the Civil Code, in paragraphs 2 and 3, obliges the lessor to carry out repairs necessary to maintain the property in a suitable condition for its intended use. Likewise, Article 21 of the LAU of 1994 reinforces this obligation, guaranteeing the peaceful enjoyment of the lease.
However, these responsibilities do not extend to the common elements of the property. The necessary repairs in these areas are not imputable to the lessor, but to the Community of Owners.
Jurisprudential doctrine reiterates that the lessor is not obliged to repair damage to the leased premises caused by defects of common elements in a horizontal property regime.
Are roof terraces private or common elements?
Generally, roof terraces are considered to be private if they are attached to the dwelling.
In the case of the defendant’s property, described in the deed of new construction and horizontal division, a roof terrace of 134.10 m² is mentioned as an inseparable annex.
According to § 553-54.1 CCC, inseparable annexes belong exclusively to their owners. The common elements, on the other hand, include areas such as garden areas, sports facilities and security services, which are intended for common use.
Is it possible to convert a storage room into a parking space?
Ruling 446/2002 of 9 May 2002 clearly states that it is not possible to change the use of premises from a storeroom to a garage. The court of appeal ordered the co-defendants to cease the garage activity, stating that it did not comply with the original purpose of the premises.
Although Decree 2414/1961 was repealed, restrictions on changes of use such as those outlined in Law 34/2007 on air quality and atmospheric protection still apply.
It is crucial to note that use as a car park involves important environmental considerations. According to Law 6/2014 of the Comunitat Valenciana and the Villena Municipal Ordinance of 2013, these activities require a specific environmental license.
Therefore, converting a storage room into a garage without complying with these regulations constitutes a violation of the law, not permitted under art. 7.2 of the Horizontal Property’s law.
Does the owner of a property with an adjoining yard with the right to cover it making the covered work his own become the owner of the yard at the moment of covering it?
In Horizontal Property, common elements are all those not determined in the articles of association as subject to separate ownership. If the articles of association allow changing the common condition of a certain element of the building, this power must be interpreted strictly. Therefore, if the owner of a premises, who has been assigned the use of the adjoining yard, has the power to cover the yard by making the building his own, it cannot be admitted that he extends the ownership of the premises to the covered surface of the yard. He only owns the roof itself.
Can a dwelling used as a porter’s lodge be removed from this use and sold as another dwelling in the building?
The Community of Owners can sell the dwelling used as a porter’s lodge as an additional dwelling. This can be done by means of a public deed and simultaneous sale and disaffection of the common element. The deed can be granted only by the President of the Community, along with the purchaser. This is based on a certificate issued by the Secretary, stating that the agreement was adopted unanimously at an extraordinary general meeting attended by all co-owners, both present and represented.
In this case, it should not be understood as an alteration of the constitutive title or an act of disposal on common elements. Unanimous consent of all co-owners, according to the Register, is necessary due to the requirements of the principle of successive tract.
As the DGRN has reiterated many times in matters of Horizontal Property, a distinction must be made between agreements that are collective acts, attributed to the Meeting as a community body, and those acts that affect the essential content of ownership rights, requiring the individualized consent of the corresponding owners.
In this case, similar to the Resolution of 4 March 2004, the disaffection and subsequent disposal of the element is an act of the Meeting as the collective body of the Community of Owners. This must be adopted unanimously by the owners, as provided in the first rule of Article 17 of the Horizontal Property Law. Therefore, the defect alleged by the Registrar, consisting of the lack of a certificate accrediting the attendance of all owners with their identifications, cannot be maintained. The qualification must verify compliance with the requirements established in the rule without extending to those derived from the principle of successive tract, which are not required as it is not an individual act of each owner.
Accepting the aforementioned doctrine, which distinguishes between situations requiring individual consent of owners because the essential content of their right is affected, and those where collective consent of the Community is sufficient, the question is to determine which case it is. Thus, accreditation would be required that the registered owner of the affected elements has given consent in the form determined by the Law. Alternatively, it would be sufficient to accredit that the collective agreement required by the legislation regulating Horizontal Property has been reached.
In cases like the present one, the General Directorate of Registries and Notaries has pointed out others, such as the linking ‘ob rem’ of storage rooms to dwellings as annexes, or a modification of the articles of association, such as modifying participation in the expenses corresponding to commercial premises.
Can the owner of several premises, following their division, not rely on the other co-owners for determining the floor areas of the new premises?
If the owner of several segregated premises needs to clarify the surface areas of the premises and specify the constructed surface area, the surface area of the common areas, the commercial area, and the useful surface area of each element affected by the segregations, the consent of the rest of the co-owners is required.
This is considered a modification of circumstances that exceeds the scope of unilateral action of the owners of private elements.
By means of this rectification, the aim is to specify the surface area in terms of repercussions in common areas. While it entails a reduction in the constructed surface area usable independently of the premises published in the Registry, it also implies an attribution or specification in relation to common elements. This is done without the intervention of the co-owners of these elements, contrary to the principles of legitimation and successive tract of the registry system. These principles prevent the modification of registered rights without the consent of the registered owner or, failing that, by means of a final judicial decision in duly brought proceedings against the other registered owners of the property.
Why do the other co-owners have to intervene? Simply because the determination of the surface area has consequences in accordance with the provisions of article 5 of the Horizontal Property Law. It affects the determination of the participation fee of the private elements relative to the total value of the property. This justifies the indispensable intervention of the rest of the owners of the building.
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