CONDOMINIUM LAW, PART 2

REPRESENTATIVE BODIES

Law 49/1960 of July 21 on Condominium Ownership establishes a set of minimum governing bodies that must exist in every condominium association, without prejudice to the possibility that the association’s bylaws may establish additional bodies, provided that these are mandatory and are in addition to those established by law.

THE PRESIDENT

This person serves as the legal representative of the Homeowners’ Association for all purposes, and his or her duties are governed by Article 13 of the Act; therefore, we consider it reproduced here and will only highlight the liability they assume toward the other co-owners as well as toward third parties, given their status as the legal representative of the Homeowners’ Association.

By virtue of this legal capacity and representation, the Community is represented not only in court but also before third parties, and has full legal capacity to bind the Community for legal purposes.

The Homeowners' Association Bylaws specify that members are typically elected at random, and it is important to note that this position cannot be declined; therefore, serving in this role is mandatory for the term established in the Bylaws, which is usually one year.

It is important to note that the President must be the owner or co-owner of the unit or a member of the homeowners’ association; third parties who are not members of the homeowners’ association may not be appointed.

It is important to note that the President may be a business entity if it is the registered owner of the apartment or a unit within the Homeowners’ Association.

Finally, since we are sometimes asked about this, it is occasionally permissible for the president to delegate to a third member of the community the task of presiding over a meeting; however, this should always be on an ad hoc basis and not on a regular basis, since the position is mandatory and personal in nature and cannot be delegated—without prejudice, as we have said, to any occasional action.

THE SECRETARY

This position is provided for by law, and its duties are purely administrative, consisting of taking minutes of meetings. It may be held by the same person who serves as President and Administrator.

THE ADMINISTRATOR

According to the Condominium Act, the positions of Administrator and Secretary-Administrator may be held by any owner, as well as by individuals with sufficient and legally recognized professional qualifications to perform these duties; it is also very common for these positions to be held by legal entities.

The Administrator is responsible for the duties clearly and thoroughly set forth in Article 20 of the Condominium Law, to which we refer so that the reader may familiarize themselves with it, as it is easy to understand.

HOMEOWNERS' ASSOCIATIONS

LDecisions that affect all co-owners must be made at a meeting of co-owners.

The Condominium Act itself establishes, as an exception, a series of matters for which its approval is not required, provided that the co-owners have reached a prior agreement at a meeting, as stated in Article 10.

In fact, the aforementioned law stipulates that there are several areas in which the Community must act without the need for prior agreement, such as:

1. The work and repairs necessary for the proper maintenance of the property and to fulfill the duty to preserve it; this is merely a general description of the broader concept, and, of course, it must include any work required by the government for the property’s preservation.

2.- Work necessary to ensure reasonable accommodations regarding universal accessibility, which is the guiding principle of the text and implies that, in such cases, it will not be necessary for the resolutions to be approved by the homeowners’ association, and it also adds the requirement that the work must be carried out when it is funded by public grants covering at least 75% of the total cost.

A whole series of additional measures are then listed, which we will not repeat here; for this purpose, we refer the reader to the aforementioned Article 10, which provides the relevant information.

Apart from these exceptions, all decisions must be approved at a meeting, and depending on the matter at hand, certain approval thresholds apply, just as certain thresholds are established for the meeting to be considered quorate.

Article 17 of the Condominium Law classifies and organizes the matters within the jurisdiction of the Board and specifies the corresponding quorum required for its formation and approval.

Given the extensive scope of the regulations, it would be pointless to repeat them in this article; we refer the reader to the aforementioned article, although we would like to explain the various criteria.

On the one hand, the law distinguishes between votes cast by owners and votes based on ownership shares, thereby separating these two concepts when determining the quorum required for the approval of resolutions and the attendance of owners at the meeting.

The law establishes different voting majorities, ranging from a simple majority of owners and ownership shares to the requirement of unanimity, depending on the matter to be approved.

For example, and very briefly:

Unanimity will be required for matters involving the approval or amendment of the horizontal property title or the bylaws, and such unanimity must represent the total share of ownership interests.

Approval of the installation of shared infrastructure for access to telecommunications services will require the support of one-third of the Community’s members, which in turn will represent one-third of the participation fees.

The approval of construction projects aimed at removing architectural barriers that hinder access or mobility for people with disabilities—among other projects—will require a majority vote in favor from the owners, who in turn must represent a majority of the ownership shares.

A favorable vote by three-fifths of all owners—who in turn represent three-fifths of the ownership shares—will be required to establish or discontinue doorman, concierge, security, or other common services of general interest, among other matters.

No approval by the homeowners’ association will be required; only prior notification to the homeowners’ association is needed for anyone wishing to install an electric vehicle charging station for private use in the building’s parking lot, provided that the charging station is located in an individual garage space.

Finally, for the validity of other resolutions, a majority vote of the total number of members represented—who in turn represent a majority of the membership shares—shall suffice; and at the second meeting, resolutions adopted by a majority of those present shall be valid, provided that they, in turn, represent more than half the value of the shares held by those present.

Finally, if the required majorities are not obtained, the matter must be referred to a judge, who will hear the parties at a hearing and render a decision in accordance with equity.

AGREEMENTS AND THEIR CHALLENGING

Resolutions adopted by the community at a homeowners’ association meeting must be notified to the co-owners, regardless of whether or not they attended the meeting at which the resolution was adopted, and they will have a period of time within which to challenge the resolution in court.

This period shall be three months, unless the acts in question are contrary to the law or the bylaws, in which case the period shall expire after one year.

Article 18 of the Condominium Law regulates this section in detail, in a concise and clear manner; therefore, we refer the reader to that legal text, as it will be understood without the need for any further explanation.

COMPLaint Regarding Condominium Dues

According to Article 21 of the Condominium Law, resolutions adopted by the owners’ association regarding claims for community debts may be brought before a court through the payment order procedure.

This process is provided for in the LEC for certain cases, including claims for community debts.

The relative speed of this judicial process provides a tool for local governments, which frequently resort to this type of legal proceeding to recover the expenses owed to them

Since we are addressing this procedural issue, we would like to take this opportunity to comment on a very important point: community debts are subject to a short statute of limitations of 5 years, as the Supreme Court has already established in its case law that Article 1966.3 of the Civil Code applies in these cases.

Undoubtedly related to this is the issue of granting priority to a claim in the event of foreclosure, as it establishes that the home or apartments are subject to lien during the current year and for debt incurred three years prior. This implies that, in the event of debt, this claim takes priority over other claims and is second only to wage claims, hence the importance of filing a claim within the deadline to take advantage of this recognition of the right to a privileged claim.

This means that the law has granted community loans a lien on the apartments, which will be used to secure the community’s debts as provided by law.

This means that, in cases of nonpayment, the Homeowners’ Association must not delay if it wishes to avoid the debt becoming time-barred and, more importantly, the legal inability to use the property to satisfy the debt.

ADDRESSES FOR THE PURPOSE OF NOTIFICATION OF AGREEMENTS AND CALLS FOR PROPOSALS

This is not a trivial matter and generates a great deal of controversy, even though the Horizontal Property Law requires the owner of a home, commercial space, or other unit to provide an address that, for these purposes, does not have to match that of the home or apartment within the Homeowners’ Association. Failing that, the valid address is the one associated with the community of owners.

Notwithstanding the foregoing, and as complementary methods of notification, delivery through mailboxes and even slipping notices under the door are permitted provided that this is the customary practice among the co-owners.

It is also recommended to post the notice on the bulletin board in the most visible location; furthermore, notices and summonses may be sent via email and WhatsApp, even though this may present evidentiary challenges should a claim be filed against the Community on the grounds of failure to receive a summons or notification.

Our advice is to always require the neighbor to provide their address, and if that is not possible—without prejudice to serving notice at the address—to use the alternative notification methods we have already mentioned to avoid a challenge.

In any case, and in the event of a lawsuit, the most important thing is to prove knowledge of the notice or summons or of the approval of the resolution, and that will always be essential; therefore, proving this will often be sufficient.

Finally, it should be noted that the law is clear in stating that addresses abroad are not valid; therefore, there is no doubt that if such an address is used, it will not be valid, and the summons and notice must be served at the building’s address, with other precautions such as delivery to the mailbox and posting on the bulletin board, all to avoid challenges.