COMMON ISSUES IN HOMEOWNERS' ASSOCIATIONS
We are launching a new section where we will post the most common scenarios and questions we receive, as well as cases we have handled at this firm and relevant court rulings, so that you can use this section to resolve or clarify any doubts you may have.
What should be done if the registered size of a property differs from its actual size with respect to the ownership share?
This scenario is not all that surprising, and this law firm was very recently presented with this case. The answer can only be clear and unequivocal, since what is valid is the description and measurement in the Land Registry, which determines the ownership share. Therefore, if you are in an identical situation, you should try to modify the and thereby adjust the ownership share.
When we refer to a discrepancy, we consider both cases—whether the difference is greater or smaller.
The action is clear and constitutes a judicial proceeding, since only a court ruling has the authority to amend a registry entry.
Community members residing in a foreign country must be sued for nonpayment of expenses at the location of the property, not at their address abroad.
The homeowners’ association is not required to sue the foreign homeowner in the country where he or she resides and may do so where the debt is owed—that is, at the location of the property—since he or she accepted the board’s decision setting the unpaid dues, as ruled by the COURT OF JUSTICE OF THE EUROPEAN UNION in a judgment dated May 8, 2019.
The agreement to set installments and settle the debt requires you to make payments at the location of the property. If you fail to do so, you must be sued in the courts with jurisdiction over the property.
Roof terraces on the building
Existing terraces on building rooftops are common elements, regardless of the use assigned to any specific owner in the Declaration of New Construction.
Recently, a person came to this office because he had enclosed a small portion of the terrace that was not being used by the homeowners’ association. This portion was adjacent to his terrace, and since no one was using it, he decided to annex it. However, when the homeowners’ association learned of this, it required the client to restore the small terrace to its previous condition.
We advised him that he needed to do this, since the fact that this small portion of the terrace did not even appear in the new construction plans and had not been assigned to him meant that he had no right to it. Therefore, he had to stop using it exclusively and tear down the wall he had built to annex it to his property.
Elevators
It is established case law that the installation of an elevator in a homeowners’ association that lacks this service—which is considered to be in the public interest—allows for the creation of an easement, subject to appropriate compensation for damages. This applies even when the installation involves the occupation of part of a private space, provided that the legally required majorities for adopting such a resolution are met.
It is important to note that the consent of the co-owner directly affected is not required, provided that the encumbrance imposed does not result in a loss of livability or functionality of their private space. This condition seeks to balance the general interest of the community with the individual rights of the affected owner.
«It is established as a matter of case law that the adoption of resolutions directly related to the resolution to install an elevator—even if they involve an amendment to the deed of incorporation or the bylaws—requires the same majority as that required by the Horizontal Property Law for the main resolution to install the elevator.».
This doctrine was subsequently reaffirmed by the ruling of November 7, 2011. In that ruling, after recalling the rulings of December 18, 2008, and drawing on the ruling of September 13, 2010, the procedure and requirements for making significant decisions within a homeowners’ association are clarified.
It states that «Ultimately, for the adoption of resolutions directly related to the resolution to install an elevator—even if they involve amending the deed of incorporation or the bylaws—the same majority is required as that stipulated by the Horizontal Property Law for such a resolution.».
This statement underscores the importance of following established legal procedures to ensure the validity and acceptance of the proposed changes within the community.
Distinguishing Between Common Areas and Private Areas
The case is examined in which the trial court’s judgment, upholding the defendant’s argument, holds that the pipe that caused damage to the apartment below is a common element, the maintenance of which is the responsibility of the Homeowners’ Association.
This decision was made even though, at the time the leaks occurred, there were no individual water meters in the homes, and even though the pipe is located inside the home owned by the defendant.
We cannot agree with that position. Despite the location of the pipe and the lack of individual meters at the time of the leaks, responsibility for and maintenance of internal infrastructure raise important questions about the rights and obligations of individual owners vis-à-vis the community at large.
The fact that there are no individual meters neither adds to nor detracts from the private or communal nature of the pipe; rather, the determining factor is whether it is located inside the dwelling and whether it serves that dwelling exclusively, as stated in the ruling of this 5th Section dated May 23, 2014. That is to say, it must be analyzed, on the one hand,.
To further illustrate this point, another Supreme Court ruling states that we must consider whether the pipe is part of the main water distribution line or whether it carries water exclusively to the residence.
Pursuant to Article 396, common elements are defined as the installations, pipes, and conduits for drainage and for the supply of water, gas, or electricity—including those for solar energy—up to the entrance to the private space. This means that the distinguishing factor is the location of the element within the building’s structure.
Furthermore, it should be noted that the service provided by the facility must be exclusive to that specific unit, in accordance with the provisions of Article 3 of the Condominium Law. This provision helps clarify responsibility for the maintenance and ownership of specific facilities within residential complexes, ensuring that each owner is aware of their rights and obligations regarding the infrastructure that directly affects them.
In the case of water supply pipes, a shut-off valve is typically installed at the point where the pipe begins to serve a specific unit exclusively; the owner may or may not shut off the supply at that point and may alter the route of the pipes, and therefore has the duty to preserve and maintain them in proper working order, as provided for in Article 9 of the Condominium Law.
«In this regard, we may cite the ruling of the 11th Chamber of the Provincial Court of Madrid, dated January 30, 2006, which states that pipes running through a private dwelling are not considered common elements, unless expressly provided for in the articles of incorporation or by a decision of the homeowners’ association adopted in accordance with the law.”.
There is no such statement on the record in this case, and the absence of a shut-off valve to cut off that water supply to the residence is, moreover, irrelevant.»
«On the other hand, there is nothing to prevent the owner from installing such a lock inside the unit, provided that it does not technically impair the installation as a whole. This is similar to what occurs with other utilities, such as water, whose pipes, taken as a whole, constitute a general service, but with a distinction made between the private pipes that run through the dwelling and the general pipes in common areas.”.
In this case, the downspouts and drains—such as the pipe in question—are considered private property, unlike the electrical system, which is considered common property.
Joint Citations
In the absence of such notification, the apartment or premises belonging to the community shall be deemed the address for summonses and notices, and those delivered to the occupant thereof shall have full legal effect.
If it is impossible to serve a summons or notice to the owner at the location specified in the preceding paragraph, service shall be deemed to have been made by posting the corresponding notice on the community bulletin board or in a visible, commonly used location designated for that purpose.
A statement must be included indicating the date and the reasons for using this method of notification, signed by the person serving as the community secretary, with the president’s approval.
A notice served in this manner will take full legal effect within three calendar days. This ensures that, even if the owner does not receive the notice directly, it remains valid and effective under the law.
Is the landlord liable for damage caused to common areas?
According to established case law of the Supreme Court, the landlord of commercial premises cannot be held liable for damages resulting from defects in the common areas.
Article 1554 of the Civil Code, in paragraphs 2 and 3, requires the landlord to make the repairs necessary to maintain the property in a condition suitable for its intended use. Likewise, Article 21 of the 1994 LAU reinforces this obligation, guaranteeing the peaceful enjoyment of the lease.
However, these responsibilities do not extend to the common areas of the building. Any necessary repairs in these areas are not the landlord’s responsibility, but rather that of the homeowners’ association.
Case law reiterates that the landlord is not obligated to repair damage to the leased premises caused by defects in common elements in a condominium complex.
Are rooftop terraces private or common areas?
Generally, rooftop terraces are considered private if they are attached to the residence.
With regard to the defendant’s property, as described in the deed of new construction and horizontal division, a 134.10 m² terrace on the roof level is listed as an inseparable appurtenance.
According to Article 553-54.1 of the CCC, inseparable annexes belong exclusively to their owners. Common elements, on the other hand, include areas such as landscaped areas, sports facilities, and security services, which are intended for common use.
Is it possible to convert a storage unit into a parking space?
Judgment No. 446/2002, dated May 9, clearly states that it is not possible to change the use of a storage facility to a garage. The court of appeals ordered the co-defendants to cease operating the garage, noting that it did not comply with the original purpose of the premises.
Although Decree 2414/1961 was repealed, restrictions on changes in land use—such as those set forth in Law 34/2007 on air quality and atmospheric protection—still apply.
It is crucial to note that using the site as a parking lot involves significant environmental considerations. According to Law 6/2014 of the Valencian Community and the 2013 Villena Municipal Ordinance, these activities require a specific environmental permit.
Therefore, converting a storage room into a garage without complying with these regulations constitutes a violation of the law and is not permitted under Article 7.2 of the LPH.
How do tenants contribute to the installation costs of a new elevator?
The installation costs for a new elevator must be paid by all building owners, including those with commercial spaces. This is separate from any agreements regarding contributions toward its maintenance.
It is established case law of this Court that when a new elevator is installed, the owners of commercial premises and garages must also contribute to the associated costs.
Exclusion on the grounds of nonuse would be unfair to the homeowners. It would disrupt the allocation of expenses due to the additional costs that exempting some co-owners would impose on the rest.
This would require unanimous approval (judgments 797/1997, dated September 22; 929/2006, dated September 28; 342/2013, dated May 6; 202/2014, dated April 23; and 678/2016, dated November 17).
The basis of this doctrine is that the functional adaptation resulting from the installation of an elevator that did not previously exist is not merely an improvement.
Judgment No. 216/2019, dated April 5, provides as follows: «This court has ruled, among other cases, in Judgment 678/2016 of November 17 (and in the cases cited therein), that the installation of a new elevator service must also be paid for by the owners of the premises, since they were only exempt from its upkeep or maintenance (Article 10 of the LPH).»
Similarly, in Judgment No. 381/2018, dated June 21, it was held that: «The installation of the elevator—and, in this case, the extension of its travel path (‘to ground level’)—must be considered not only mandatory but also necessary and required for the habitability and full use of the building, as dictated by the standardization of its use by all residents, and not merely as an innovative improvement project (Judgments 797/1997, of September 22, and 929/2006, of September 28).»
Similarly, that ruling clarifies that a provision in the building bylaws exempting unit owners from contributing to the costs of maintenance, upkeep, and routine repairs of the building entrance and the elevator does not mean they are exempt from contributing to installation costs.
This is because such an exemption is not expressly provided for and would go beyond the provisions of Articles 9, 10, and 5 of the LPH.
Can the lot owners' association bill a lot owner who is not a member of the association for common expenses?
Ownership or control of a lot that is part of a community with common areas requiring maintenance and shared use entails the obligation to pay those expenses, even if the owner was not a member from the outset or even if the owner withdraws from the community.
Ultimately, what lies at the heart of the matter is the debate over the legitimacy of the Homeowners’ Association vis-à-vis non-member homeowners, which we have already addressed in the preceding paragraph.
For further support, we refer to the content of the Madrid High Court of Appeal, Section 19, dated April 19, 2023, Case No. 582/2022, which also cites the decision of this 8th Section dated October 13, 2008, which reads as follows:
The Provincial Court of Madrid has issued numerous rulings analyzing the plaintiff’s standing in claims for fees related to services provided to the owners of the parcels. All of these rulings are based on the premise that the group has not been established as a homeowners’ association under the Horizontal Property Law nor does it constitute a collaborating urban planning entity.
There are other arguments they cite to assert the claim against defendants who are not members of the Association. Among these is: SAP Madrid, Section 11, No. 591/2011, dated October 21: «Indeed, although the defendant has never been a member of THE ASSOCIATION, this does not exempt her—as the owner of a lot in the DIRECCION002 Subdivision— not only from contributing to the expenses arising from the common elements as set forth in THE ASSOCIATION’s Bylaws, but also because the mere act of purchasing a property in said Development creates an ob rem title between the lot and the rights in the common property belonging to the Association. Therefore, it is clear from Document No. 2, submitted with the complaint, that each and every owner in the housing development is also an owner of the SOCIAL CLUB, regardless of their membership status, since it is considered a common element to which every owner must contribute, by the mere fact of being an owner.»
It follows, therefore, that the fact that she is not a member—nor has she ever been a member—of THE ASSOCIATION does not exempt her from paying the expenses related to the common areas that are part of the housing development.
In this regard, it is worth noting the large number of rulings handed down by the Provincial Court, which—in cases identical to the one at issue—have ordered homeowners who are not members of the homeowners’ association to pay the dues.
Based on the foregoing, it is clear that the term “Association” refers to an organizational structure comprising the co-owners who have purchased lots in the development, whose membership is based on the connection of their property to the upkeep and maintenance of common elements, similar to what is known as a “Community of Owners” as regulated by the Horizontal Property Law.
At the time the plaintiff association was formed—when little attention was paid to the legal issues surrounding the various organizational forms of “supracomunidades,” “planas,” or “urbanizaciones”—the matter was subsequently resolved with a recommendation that the provisions of the Horizontal Property Law be applied by analogy.
This refers to contributions toward the maintenance and upkeep costs of common areas. This issue has finally been resolved by the amendment to the aforementioned law through Article 24, which addresses the regulation of real estate complexes.
Over time, the legal issues arising from the use of the association model to reconcile ownership ties to common elements with a member’s freedom to choose whether or not to be part of the association to which they belong have become evident. This has given rise to conflicts of interest such as the one at hand.
As can be seen, the cited resolutions and those they refer to indicate that, in order to cover the costs of the development, the creation of a homeowners' association was chosen as the means to do so.
The expenses being claimed do not arise from membership in this association but rather from the plaintiffs“ status as owners of the parcels; this is an ”propter rem” obligation.
It is the existence of a community of property that entitles the plaintiff to claim a share of the common expenses. These rulings—whose reasoning we agree with—criticize the strategy of those owners who, by withdrawing from the Association, seek to avoid contributing to common services.
Is it legal to prohibit the use of a residence as a vacation rental? Is the term “guesthouse” equivalent to “vacation rental”?
A point that our Supreme Court has repeatedly emphasized is that prohibitions on converting residential properties into tourist apartments, as set forth in the bylaws, are fully valid. In summary, it sets forth its reasoning, which is of great interest.
In the ruling under discussion, the key point is that, while the bylaws prohibited, among other economic activities, the operation of a guesthouse, the affected party filed an appeal arguing that this term was not equivalent to that of a vacation rental.
Any restrictions on the use of the various floors and premises established by the community bylaws, pursuant to Article 1255 of the Civil Code, are valid provided they comply with the mandatory legal provisions that must be observed.
Consequently, such apartments and commercial spaces may be used for purposes and activities not expressly provided for, provided that they do not violate the law and are not prohibited in the articles of incorporation or the community bylaws.
The right to private property, enshrined in Article 33 of the Spanish Constitution, is broadly conceived in our legal system. Limitations established by law or convention must be interpreted narrowly.
One of the characteristics of condominium ownership is that it is governed by mandatory legal provisions. This does not mean that Article 1255 of the Civil Code does not apply, since the bylaws approved by the owners’ association may be enforced provided they do not contradict the provisions of the Condominium Ownership Act.
The law permits certain rights and duties to be specified, supplemented, or even modified by agreement, provided that they do not contravene the mandatory legal provisions derived from the law. Therefore, although the drafting of bylaws is not essential, they can serve to establish the legal framework appropriate to specific circumstances.
Among these limitations are those set forth in the articles of incorporation, which, pursuant to Article 5 of the LPH, may contain rules governing the establishment and exercise of rights, as well as provisions not prohibited by law regarding the use or purpose of the building and its various floors or premises. These rules are binding on all co-owners and must be observed.
To be enforceable against third parties, these restrictions must be recorded in the Land Registry.
There is complete freedom to determine the use of a property within a condominium complex. Co-owners cannot be deprived of the right to use their property, unless such use is legally prohibited or the change in use is expressly limited by the condominium regime, its articles of incorporation, or its bylaws (judgments of February 23, 2006, and October 20, 2008).
According to case law, limitations must always be interpreted narrowly, as is the case with any infringement of property rights.
Regarding the use of apartments for tourism, the Court ruled in Judgment 1671/2023, dated November 29, in a case involving the following statutory restriction: «It is strictly prohibited to carry out any economic activity in the residential units (office, practice, clinic, etc.), unless the subcommunity of the building entrance unanimously authorizes it following mandatory consultation with any interested party.» The Court ruled that such activity was prohibited.
The same ruling was issued in Judgment No. 1643/2023, dated November 27, in a similar case where the statutory provision stated: «No professional, business, commercial, or trade activities of any kind may be carried out; use is reserved exclusively for residential purposes.”.
In the case at hand, the statutory provision states that the following is prohibited: «Changing the use of the dwelling to one other than its usual and permanent use, converting it into a commercial or industrial space, or using it—even in part—for schools, academies, lodging facilities, warehouses, agencies, workshops, or for purposes prohibited by morality and the law.»
The argument in the appeal is based on a literal interpretation of the provision in the bylaws. According to this interpretation, since the use of private residences for tourism is not expressly prohibited, such business activity is legitimate, regardless of the provisions of Article 9.1 of the bylaws. In short, what is not excluded is permitted.
In Article 5(e) of the LAU, by excluding the use of a dwelling for rental purposes, such business activity is characterized as: «the temporary transfer of use of an entire furnished and equipped dwelling that is ready for immediate occupancy, marketed or advertised through tourism channels or by any other means.”
The rulings of the courts of first and second instance interpret Article 9.1 of the bylaws as prohibiting the use of the dwellings for tourism purposes, presenting a persuasive set of arguments.
According to this argument, the statutory prohibition on using the property as «lodging facilities» prohibits the activity carried out by the defendant company.
According to the RAE, a «hospedería» is a “house intended to provide lodging for visitors or travelers, established by private individuals, institutions, or companies.”.
The defendant's activity would be included within its semantic content due to the existence of a common cause of action.
The Law provides that private residences and rooms in private residences used for tourism purposes are considered tourism accommodation businesses. The legal definition of these categories is set forth in Articles 53 and 54.
As with other tourism-related activities, in order to begin operating, it is necessary to submit a sworn statement, which entails registration in the Basque Country Registry of Tourism Companies and Activities, as well as compliance with the specific regulations established in accordance with the law.
According to the RAE, terms such as «lodging, hospitality, accommodation, shelter, and hospice» are synonyms for “hospedería,” meaning the act or effect of hosting someone.
In short, the defendant engages in an activity open to the public, advertised on advertising platforms, the essence of which lies in meeting the needs for temporary lodging inherent in tourism. This does not constitute the permanent and habitual use referred to in the statutory provision.
The prohibition on using apartments for lodging purposes includes the possibility of using them for tourism, which does not constitute an arbitrary interpretation. Prohibiting such use does not constitute an abuse of rights.
Does the owner of a home with an attached patio—who has the right to enclose it and take ownership of the enclosed structure—become the owner of the patio at the time it is enclosed?
In a condominium, common elements are all those not designated as separate property in the articles of incorporation. If the bylaws allow for changing the status of a specific element of the building from common to separate property, this authority must be interpreted strictly. If the owner of a commercial unit is granted the right to use the adjacent patio and is permitted to enclose it, this does not mean that, by constructing the enclosure, the owner’s property rights extend to the enclosed area of the patio. The owner is only the owner of the enclosure itself.
Can a unit designated as a concierge apartment be rezoned and sold as just another apartment in that building?
The Homeowners' Association may sell the unit that was previously designated for concierge services as just another residential unit by means of a public deed and a simultaneous sale to remove it from the common property. The deed may be executed only by the president of the homeowners’ association, in addition to the purchasing party. This is based on a certification issued by the Secretary, stating that the resolution was adopted unanimously at an extraordinary general meeting attended by all the co-owners, either in person or by proxy.
In this case, this should not be construed as an amendment to the articles of incorporation or as an act of disposition regarding common elements. The unanimous consent of all registered co-owners is required, due to the requirements of the principle of successive transfer.
As the DGRN has repeatedly emphasized regarding condominium ownership, a distinction must be made between agreements that constitute collective acts and those that require the individual consent of the respective owners. Collective acts are not attributed to each owner individually, but rather to the Board as a community body.
In the present case, which is analogous to the one that gave rise to the Resolution of March 4, 2004, the removal from the condominium’s common property and disposal of the aforementioned item constitute an act of the board as the collective body of the homeowners’ association. This act must be adopted unanimously, as provided for in the first provision of Article 17 of the Horizontal Property Law. Therefore, the defect alleged by the Registrar—namely, the lack of a certificate attesting to the attendance of all owners with their identification—cannot be upheld. The registration review must verify compliance with the requirements established in that provision, without extending to those derived from the principle of successive acts, which are not enforceable since this is not an individual act by each owner.
Given the accepted legal doctrine that distinguishes between situations requiring the individual consent of the owners and those requiring only the collective consent of the community, the issue boils down to determining which category applies. If individual consent is required, it must be proven that the registered owner of the affected units has given consent in the manner prescribed by law. If collective consent is sufficient, it is enough to prove that the collective agreement required by the Condominium Act was reached.
In cases such as this one, the General Directorate of Registries and Notaries has cited other examples, such as the «ob rem» link between storage units and residential properties as annexes, or the modification of the share of expenses corresponding to a commercial space.
Can the owner of multiple units, when dividing them, determine the floor areas of the new units without consulting the other co-owners?
If it is necessary to clarify the floor areas of various units separated by their owner and to specify the floor area of the owner’s own unit, the allocated area of common areas, the allocated area of commercial space, and the usable area of each of the units affected by the subdivisions, the consent of the other co-owners is required.
This constitutes a change in circumstances that goes beyond the scope of unilateral action by the owners of the private units.
This correction is intended to specify the area—without providing exact figures—as an area affecting common areas. Although it entails a reduction in the built area of the premises that can be used independently, compared to what is recorded in the registry, it also implies an attribution or specification regarding common elements. This is being carried out without the involvement of the co-owners of these very elements, contrary to the principles of legitimacy and successive title inherent in the registry system, which prohibit the modification of registered rights without the consent of the registered owner or, failing that, by a final court ruling in a proceeding duly instituted against the other registered owners of the property.
Why must the other co-owners be involved? Because determining the total floor area affects the calculation of the share of the common areas in relation to the total value of the property. This is also justified by the provisions of Article 5 of the Condominium Law, which makes the involvement of the other owners of the building essential.
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