How does the Community of Owners in Spain compare to the UK and USA?

The Community of Owners in Spain shares some similarities with systems in other countries, such as condominium associations in the USA and freeholders or leaseholders in the UK. However, there are also important differences that reflect each country’s legal framework and approach to property ownership.

Community of Owners in Spain vs. Condominium Associations in the USA

In the USA, condominium associations (HOAs) are similar in function to the Spanish Comunidad de Propietarios. Both systems regulate the ownership and management of shared areas within a multi-unit building or residential complex.

• Legal Structure: In both systems, property owners hold individual ownership of their private unit, while co-owning the common areas, like hallways, gardens, and pools. The governing body, whether a HOA or a Comunidad de Propietarios, is responsible for maintaining these common areas and making decisions on behalf of all owners.

• Governance and Decision-Making: Both communities are governed by a collective decision-making body that includes all property owners. In the USA, this is often called the Board of Directors, while in Spain, it’s the General Assembly of Owners. In both cases, these bodies meet regularly to approve budgets, make decisions about repairs, and set rules regarding the use of common spaces.

• Financial Contributions: Owners in both countries must contribute financially to the upkeep of common areas through monthly or annual fees. In the USA, these fees are typically called HOA dues, while in Spain, they are referred to as cuotas comunitarias (community fees).

• Enforcement of Rules: In both Spain and the USA, owners are required to comply with community rules and regulations. Non-compliance can lead to fines or legal action, but the specific procedures and legal remedies may vary depending on local laws.

Community of Owners in Spain vs. Freehold/Leasehold in the UK

In the UK, property ownership in multi-unit buildings typically involves a system of either freehold or leasehold arrangements, which is somewhat different from the Comunidad de Propietarios system in Spain.

• Freehold vs. Leasehold: In the UK, a building is often owned by a freeholder, who may grant long-term leases to individual owners (leaseholders). Leaseholders own the right to use their property for a set period, while the freeholder owns the building and the land. This differs from Spain, where property owners own their unit outright along with a share of the common areas (no freeholder exists).

• Collective Ownership of Common Areas: In Spain, common areas are owned collectively by all property owners through the Comunidad de Propietarios. In the UK, leaseholders do not typically own the common areas—these are managed by the freeholder. However, under some structures like Commonhold (a less common system in the UK), common areas can be owned collectively, similar to the Spanish model.

• Governance and Management: In Spain, the Comunidad de Propietarios operates as a legal entity with formal governance structures such as a president and general assembly. In the UK, freeholders are responsible for managing the building and common areas, unless a management company is involved. Leaseholders may have limited input unless they collectively purchase the freehold through a process known as Right to Manage or Collective Enfranchisement.

• Legal Framework: The Spanish system is governed by the Ley de Propiedad Horizontal (Horizontal Property Law), which sets out specific rules for managing shared spaces. In the UK, the relationship between freeholders and leaseholders is governed by various property laws, including the Leasehold Reform Act, with different protections for leaseholders.

Key Differences

• Ownership of Common Areas: In Spain, property owners own a share of the common areas outright, whereas in the UK, common areas are typically owned by the freeholder unless a Commonhold system is in place. In the USA, common areas are co-owned similarly to the Spanish system.

• Decision-Making Power: In Spain and the USA, all property owners have a say in how common areas are managed through collective voting. In the UK, leaseholders may have less control unless they own the freehold or have exercised collective rights.

• Legal Recourse: The specific legal processes and protections for property owners vary between the systems. In Spain, owners have strong legal rights under the Ley de Propiedad Horizontal. In the USA and UK, remedies for disputes between owners and management may involve different legal frameworks and processes.

So, while the Comunidad de Propietarios in Spain shares common features with condominium associations in the USA and freeholder/leaseholder arrangements in the UK, the systems differ in terms of ownership structures, governance, and legal frameworks. Spain’s system places a strong emphasis on collective ownership and decision-making, with clear legal obligations for all property owners.

Rights and obligations of owners

Rights and Obligations of Owners within a Community of Owners in Spain

As a member of a Comunidad de Propietarios in Spain, property owners have both rights and obligations under the Ley de Propiedad Horizontal (Horizontal Property Law). These are designed to ensure that all owners can enjoy their private property while contributing to the upkeep and management of the shared spaces and facilities in the community. Understanding these rights and responsibilities is crucial for maintaining harmony and ensuring the smooth functioning of the community.

Rights of Owners

Right to Use and Enjoy Common Areas

• Every property owner has the right to use and enjoy the common areas of the building or residential complex, such as gardens, swimming pools, parking lots, and elevators, provided they do so in accordance with the community rules and without infringing on the rights of other owners.
• Owners can access these areas for personal use, but they must ensure that their use is respectful and does not damage communal property.

Right to Participate in Decision-Making

• Property owners have the right to participate in the General Assembly of Owners, where decisions about the management, maintenance, and repair of common areas are made. They can vote on important issues, such as budget approvals, repairs, and rule changes.
• The number of votes an owner has is typically proportional to the size of their property, meaning larger properties might carry more voting weight.

Right to Be Elected as President or Secretary

• Owners have the right to be elected as the president or secretary of the community. These roles are crucial for managing the day-to-day operations of the community and ensuring that the decisions made in the General Assembly are implemented.

Right to Access Community Records

• Owners have the right to access the community’s financial records, meeting minutes, and other official documents. This transparency helps ensure that owners are fully informed about how their community fees are being spent and how decisions are made.

Right to Challenge Community Decisions

• If an owner disagrees with a decision made by the General Assembly, they have the right to challenge it in court, provided they did not vote in favor of it and have registered their disagreement during the assembly or within 30 days after the decision was made.

Right to Make Modifications to Private Property

• Owners have the right to make modifications to the interior of their private property as long as these changes do not affect the structure, safety, or external appearance of the building. Any modifications to common areas or to the external appearance of a property typically require approval from the General Assembly.

Obligations of Owners

Obligation to Pay Community Fees

• Owners are required to contribute financially to the maintenance, repair, and operation of the common areas by paying community fees (cuotas comunitarias). These fees are calculated based on the size or value of each property and are usually approved at the General Assembly.
• Timely payment of these fees is mandatory. If an owner falls behind on payments, the community may take legal action to recover the funds, and the owner may lose their right to vote on community decisions until the debt is settled.

Obligation to Maintain Their Property

• While owners can modify their private property, they must keep it in good condition to prevent damage or inconvenience to neighboring properties or common areas. Any neglect that results in damage to shared areas could lead to liability for repair costs.

Obligation to Comply with Community Rules

• Owners must follow the rules and regulations set by the community. These may include rules about the use of common areas, noise restrictions, pet ownership, and maintenance of balconies or terraces. Non-compliance with community rules can result in fines or legal action.

Obligation to Respect the Rights of Other Owners

• Owners are required to respect the rights of other owners, including their right to privacy and peaceful enjoyment of their property. Activities that cause excessive noise, obstruct common areas, or disturb other residents can lead to complaints or disciplinary action by the community.

Obligation to Allow Necessary Repairs and Access

• Owners must allow access to their property when necessary for essential repairs or maintenance that may affect the building as a whole, such as plumbing, structural repairs, or safety inspections. Refusal to grant access could result in legal consequences if it affects the safety or integrity of the building.

Obligation to Attend and Participate in Meetings

• While attendance at community meetings is not mandatory, it is strongly encouraged. Owners are expected to stay informed and participate in the decision-making process. If an owner is unable to attend, they can delegate their vote to another owner via a written proxy.

Obligation to Refrain from Altering Common Areas

• Owners are prohibited from making alterations to common areas or changing the appearance of external features (such as painting the facade or installing non-approved fixtures) without prior approval from the General Assembly. Unauthorized changes can lead to fines and mandatory restoration.

Consequences of Non-Compliance

Failure to fulfill these obligations can have serious consequences. The community has the legal right to impose fines, take legal action, or restrict certain rights (like the ability to vote in the General Assembly) if owners fail to meet their financial or legal responsibilities. Moreover, persistent violations of community rules can result in more severe penalties, including court orders to enforce compliance.

By understanding and adhering to these rights and obligations, owners can contribute to the smooth functioning of the Comunidad de Propietarios, ensuring a harmonious living environment for everyone involved.

Calculating the quota of each community member

In a Comunidad de Propietarios (Community of Owners) in Spain, each property owner is responsible for paying a portion of the community expenses, which is typically used for maintaining and managing common areas and services. This portion is known as the owner’s “quota” (cuota), and it is calculated based on a key concept called the “coefficient of participation” (coeficiente de participación). This coefficient determines each owner’s share of the community’s overall expenses.

1. What is the Coefficient of Participation?

The coefficient of participation is a percentage assigned to each property in the commonhold and reflects its proportional value relative to the total value of all properties in the community. It is a crucial factor in determining each owner’s financial contribution to community expenses.

How is it Determined?

The coefficient of participation is determined by various factors, including:

• The size of the property: Larger properties generally have a higher coefficient.
• The value of the property: More valuable properties contribute a greater share to the community expenses.
• Location within the building or complex: Properties with better locations (e.g., higher floors, better views, corner apartments) may have a higher coefficient.
• Property use: In some cases, if a property is used for commercial purposes (e.g., a shop or office), its coefficient might be higher than that of residential units.

These factors are considered when the developer creates the community and are typically outlined in the Master Deed (Escritura de División Horizontal), which is the legal document that establishes the community and assigns the coefficients to each property.

2. How the Coefficient Affects Community Fees

The coefficient of participation is expressed as a percentage, and it represents each owner’s share of the total community expenses. For example, if a property has a coefficient of 3%, the owner will be responsible for 3% of the community’s budgeted expenses, including:

• Routine maintenance (cleaning, repairs, gardening).
• Utility costs for common areas (electricity, water).
• Insurance for common areas.
• Administrative costs (fees for the administrator and other professionals).
• Reserve fund contributions.
• Special assessments (for major repairs or improvements).

3. Example of Coefficient Calculation

Let’s consider a simplified example to demonstrate how the coefficient of participation is used to calculate community fees:

• Total Budget of the Community: €100,000
• Coefficient of Participation for Property A: 2%
• Coefficient of Participation for Property B: 4%

Using these coefficients:

• Property A’s share of the community expenses will be 2% of €100,000 = €2,000.
• Property B’s share of the community expenses will be 4% of €100,000 = €4,000.

Each property owner pays a portion of the total community expenses based on their coefficient, ensuring that larger or more valuable properties contribute proportionally more to the costs of maintaining the building or complex.

4. How the Coefficient is Determined and Approved

The coefficient of participation is determined by the developer when the building or development is first constructed and divided into individual properties. It is usually included in the community’s governing documents, such as:

• Master Deed (Escritura de División Horizontal): This document establishes the community and assigns ownership shares to each unit.
• Community Bylaws (Estatutos Comunitarios): These bylaws may further clarify the use of the coefficients and how community fees are distributed.

Once established, the coefficients are legally binding, and property owners must pay their share of the community’s expenses according to their assigned coefficient.

Modifying the Coefficient

• Unanimous Consent Required: Changing the coefficient of participation generally requires unanimous consent from all property owners, as it affects each owner’s financial obligations. It is very difficult to modify the coefficients unless all owners agree to the change.
• Reasons for Modification: Coefficients may be adjusted if there is a structural change to the building, such as the division of a property into multiple units or the addition of new units that alter the overall value or structure of the community.

5. Special Cases: Different Coefficients for Specific Expenses

In some communities, there may be different coefficients for different types of expenses. For example:

• Common Areas Used by All Owners: General expenses related to the upkeep of common areas (gardens, swimming pools, hallways) are typically divided based on the standard coefficient of participation.
• Limited Common Areas or Facilities: Some communities have areas or facilities that are used by only a subset of the owners (e.g., parking spaces, gyms, or elevators). In these cases, a different coefficient may apply, and only the owners who benefit from these facilities may contribute to their maintenance costs.

For example, if a building has an elevator but some owners live on the ground floor and do not use the elevator, it is possible for the community to assign a higher coefficient to the owners of upper-floor units who benefit from the elevator, while ground-floor owners may be exempt from contributing to elevator maintenance.

6. Consequences of Non-Payment

Each property owner is legally obligated to pay their share of community expenses according to their coefficient. If an owner fails to pay their community fees:

• Loss of Voting Rights: The owner may lose their right to vote in the General Assembly until they settle their debts.
• Legal Action: The community can take legal action to recover unpaid fees. Spanish law allows communities to seek court orders to enforce payment, and property owners can face asset seizures or liens on their property until the debt is paid.

Conclusion

The coefficient of participation is a fundamental mechanism for calculating each property owner’s financial responsibility in a Community of Owners. It is based on the size, value, and location of the property and is determined by the developer when the community is established. This coefficient ensures that community expenses are fairly distributed, with larger or more valuable properties contributing proportionally more. Understanding the role of the coefficient is crucial for property owners, as it directly affects their community fees and financial obligations within the community.

Managing and maintaining the common areas

Common areas such as hallways, gardens, pools, parking spaces, and elevators are shared by all property owners and are essential to the functionality and aesthetic appeal of the building or residential complex. The proper management and maintenance of these areas are crucial to ensuring a safe, clean, and pleasant living environment for all residents. This process is structured and governed by both legal obligations and the collective decision-making of the property owners.

Key Players in Managing Common Areas

General Assembly of Owners

• The General Assembly is the primary governing body of the community, where all important decisions about the management, repair, and improvement of common areas are made. Owners meet at least once a year to discuss and vote on budgets, maintenance projects, and any issues related to shared spaces. Additional meetings can be called when urgent matters arise.
  • Decisions made by the assembly, such as approving maintenance contracts or large repairs, require a majority vote (or in some cases, a special majority depending on the type of decision).

President of the Community

• Elected by the property owners, the president represents the community and oversees the execution of decisions made by the General Assembly. They ensure that maintenance and management tasks are carried out properly, and they may serve as a point of contact between the owners and the external service providers.

Administrator

• Many communities hire a professional administrator (often an external company or individual specialized in property management) to handle the day-to-day operations, such as maintaining financial records, organizing repairs, and managing contracts with service providers (cleaning, landscaping, security, etc.).
• The administrator is responsible for implementing the decisions made by the General Assembly and managing the community’s budget, including collecting community fees and paying for maintenance work. They also ensure compliance with legal requirements related to safety, fire prevention, and building regulations.

Maintenance Staff or Contractors

• The actual work of maintaining common areas is typically carried out by hired professionals, such as cleaning crews, gardeners, pool maintenance companies, and security services. The community may either hire a dedicated staff or contract with external companies to handle these tasks.

Management Process for Common Areas

Budgeting and Financial Planning

• A significant part of managing common areas is the preparation and approval of the annual budget, which covers the costs of maintaining and repairing shared spaces. This includes routine expenses (like cleaning, gardening, or security) as well as unexpected repairs or improvements.
• The budget is proposed by the administrator and discussed during the General Assembly. Once approved, each property owner contributes their share through community fees, which are generally based on the size or value of their property.

Routine Maintenance

• Cleaning and Upkeep: The community hires cleaning personnel or companies to ensure that common areas such as hallways, staircases, and elevators remain clean and well-maintained. This includes the regular cleaning of floors, windows, and other shared spaces.
• Gardening and Landscaping: For communities with gardens, green areas, or outdoor spaces, a professional gardener or landscaping service is typically hired to maintain the plants, lawns, and trees, keeping the outdoor areas in good condition.
• Pool Maintenance: If the community has a swimming pool, maintenance includes regular cleaning, water treatment, and ensuring that the pool meets health and safety standards.
• Elevator and Technical Equipment Maintenance: Elevators, garage doors, heating systems, and other technical installations require regular servicing to ensure they function safely. The community contracts professionals for these tasks, including periodic safety checks.

Repairs and Improvements

• Preventative and Emergency Repairs: When issues arise, such as broken lights, water leaks, or damaged flooring, the president or administrator coordinates the necessary repairs. Urgent repairs, such as those affecting safety or habitability, may be handled immediately without waiting for a general assembly meeting, though the cost is typically discussed in future meetings.
• Major Repairs and Renovations: Larger projects, such as repainting the exterior of the building, upgrading plumbing or electrical systems, or resurfacing common paths or driveways, require prior approval from the General Assembly. These projects usually involve gathering estimates from contractors, discussing options, and voting on the final decision.
• Improvements and Upgrades: The community may decide to improve common areas by adding new amenities (e.g., installing a security system or upgrading lighting) or making aesthetic improvements (such as renovating common entrances or landscaping). These projects are typically funded through special assessments or reserve funds, and require majority approval from the General Assembly.

Enforcement of Rules and Regulations

• Common areas are subject to rules agreed upon by the community, which dictate how these spaces should be used (for example, noise restrictions, pet policies, or usage hours for swimming pools). The president and administrator are responsible for ensuring that owners and residents comply with these rules. In cases of repeated violations, fines or legal actions may be taken to ensure compliance.
• Additionally, the community may establish rules for maintaining individual property exteriors, such as balconies, terraces, and facades, to ensure a uniform appearance and avoid damage to the building’s overall structure.

Legal and Safety Compliance

• The community must ensure that common areas comply with all relevant laws and regulations, including fire safety standards, building codes, and health and safety requirements. Regular inspections may be needed for certain facilities, such as elevators or fire alarms, and these inspections must be organized and documented by the administrator or president.
• The community is also responsible for ensuring that common areas are accessible to all residents, including those with disabilities, in accordance with Spanish accessibility laws. Improvements or adjustments may be necessary to meet these standards.

Funding for Maintenance and Repairs

The funding for the management and upkeep of common areas comes from the cuotas comunitarias (community fees) that each property owner is required to pay. These fees are calculated based on the coeficiente de participación (percentage ownership) that each property holds in the building or complex. Larger properties contribute more, as their ownership percentage is higher.

In addition to regular fees, the community may establish a reserve fund to cover unforeseen expenses or major repairs. Special assessments may also be levied for particularly large projects, requiring owners to contribute an additional amount beyond their regular community fees.

So, to summarise this section, the management and maintenance of common areas in a Comunidad de Propietarios are crucial to the smooth functioning and upkeep of the shared spaces within a residential complex. Through a structured process of decision-making and financial contributions, property owners collectively ensure that these areas are properly maintained, aesthetically pleasing, and compliant with safety regulations. With the involvement of professional administrators and contractors, the community can operate efficiently and address any issues that arise in a timely manner.

Community swimming pool FAQ

Here are some of the most frequently asked questions and answers relating to communal swimming pools in Spain.

Are communal swimming pools regulated in Spain?

Yes, there are regulations for all types of swimming pools governing things like safety, and a special set of regulations for communal pools governing things like access, which are regulated at a regional level, and can even vary from municipality to municipality. It goes without saying that pools must be maintained in compliance with health and safety regulations for keeping the pool area hygienic and how to apply chlorine to the water.

Can a community of owners set its own rules of use

Yes, so long as they don’t conflict with any official laws or regulations, a homeowners’ association can set internal rules governing things like dress codes, food treatment, and opening / closing times, and must be prominently displayed at the entrance to the pool area.

Is a lifeguard necessary?

In some cases, yes, but lifeguard regulations vary by autonomous region, so you have to check the local regulations in your region to find out if you are obliged to have a lifeguard on hand whenever the pool area is open to residents.

Can non-resident landlords use the community pool?

No, not unless they are invited to do so by their tenants

Can you use the pool if you are behind on your community fees?

There is a legal debate going on about this question, and we don’t yet have a definitive answer. So you might be able to use the pool even if you are not up to date on your community fees, but you will probably get dirty looks from other owners.

Is topless sunbathing allowed?

There is nothing in the law to say it’s not, but the community of owners can set their own bylaws on topless bathing if they like, to be voted on by a majority of owners.

Can the homeowners association install a temporary pool in summer?

Yes, if approved by a simple majority, but paying for it might be tricky if some owners don’t want to get involved.

Can you smoke in the pool area?

Yes, unless prohibited by community bylaws. Also, you can’t smoke in any area dedicated to children like a kids’ pool area.

Do owners have to install disabled access?

All new pools must have disabled access to the swimming pool area and a crane or hoist to enter the pool itself, and existing pools must be adapted if requested by one of the local homeowners or occupants who is over 70 years old or has a physical disability. However, the law lays out a limit for the amount of money that must be spent, which is the equivalent of twelve ordinary monthly payments of the community fees, although more can be spent if all the homeowners agree on it. So yes, the homeowners association can be forced to instal wheelchair access to the pool area, and special facilities like a crane or pool hoist to enter the water, so long as it doesn’t cost more than the limit set by law.

Roles of different participants

In a Comunidad de Propietarios (Community of Owners) in Spain, the management and decision-making processes are carried out by several key figures and bodies. The president, administrator, and assembly of owners each play distinct yet interconnected roles to ensure the smooth operation of the community, the maintenance of common areas, and the enforcement of rules. Below is a detailed explanation of the responsibilities of each role.

1. The President of the Community

The president of the community is a property owner who is elected or chosen from among the other owners to represent the Comunidad de Propietarios. The president acts as the legal representative and plays a key role in overseeing the execution of decisions made by the General Assembly.

Key Responsibilities:

• Representation of the Community: The president serves as the legal representative of the community in dealings with external entities, such as contractors, authorities, and legal bodies. They represent the interests of the community in official matters, including legal proceedings or administrative tasks.
• Execution of Decisions: The president is responsible for ensuring that the decisions made by the General Assembly are carried out. This may include hiring contractors for repairs, enforcing rules, and overseeing maintenance projects.
• Call and Chair Meetings: The president calls and chairs the meetings of the General Assembly. They are responsible for setting the agenda for these meetings, ensuring that discussions remain orderly, and that votes are conducted fairly.
• Dispute Resolution: As the leader of the community, the president may be called upon to mediate disputes between property owners, especially when disagreements arise over the use of common areas or compliance with community rules.
• Delegation and Supervision: The president may delegate tasks to the administrator or other community members, but they remain ultimately responsible for the smooth running of the community. They must supervise the work of the administrator to ensure that management tasks are being handled properly.

Election and Term:

The president is usually elected during the General Assembly, either through a vote or, in some cases, by rotation or random selection from among the property owners. The term is generally one year, though the president can be re-elected or replaced by another owner at the end of the term.

2. The Administrator

The administrator is a professional or company hired by the community to handle the day-to-day management of the property. While the administrator is not required by law, most Comunidades de Propietarios hire an administrator to assist the president and ensure efficient and professional management of the community’s affairs.

Key Responsibilities:

• Financial Management: One of the main duties of the administrator is to manage the community’s finances. This includes collecting community fees, preparing the annual budget, managing the reserve fund, and paying bills for services like cleaning, gardening, or repairs.
• Administrative Tasks: The administrator handles the community’s paperwork and legal obligations, such as maintaining meeting minutes, managing contracts with service providers, and filing necessary reports. They ensure the community complies with Spanish property laws and regulations.
• Property Maintenance: The administrator oversees the maintenance and repair of common areas, arranging for contractors and service providers to carry out work such as cleaning, landscaping, repairs, and technical services (e.g., elevator maintenance). They ensure that the common areas are safe and in good condition.
• Organizing General Assembly Meetings: The administrator assists the president in organizing the General Assembly meetings by preparing agendas, distributing invitations, and keeping minutes of the meeting’s proceedings.
• Advice and Guidance: The administrator provides advice and guidance to the president and other owners on legal, financial, and technical matters related to the management of the community. They act as a point of contact between the community and external parties like lawyers, contractors, or municipal authorities.

Employment:

The administrator is typically a professional service provider contracted by the community. They can be an individual, a property management company, or a lawyer specializing in property law. Their contract is reviewed annually, and the General Assembly can decide to replace them if their services are unsatisfactory.

3. The General Assembly of Owners

The General Assembly is the governing body of the Comunidad de Propietarios. It is composed of all the property owners within the community, and it is the highest decision-making body for matters affecting the management, finances, and rules of the community.

Key Responsibilities:

• Decision-Making: The General Assembly makes all major decisions concerning the community, including approving the annual budget, deciding on repair or improvement projects, and setting rules for the use of common areas. These decisions are made by majority vote, though some decisions (such as structural modifications) may require a special majority or unanimous consent.
• Approval of Budgets and Fees: One of the General Assembly’s main tasks is to review and approve the community’s annual budget, which outlines the anticipated expenses for maintaining and managing the property. Once the budget is approved, the community fees (cuotas comunitarias) that each owner must pay are calculated based on their ownership percentage.
• Election of the President and Administrator: The assembly elects the president of the community and decides whether to hire or retain an external administrator. It also has the power to vote for the removal or replacement of these roles.
• Modification of Rules and Statutes: The assembly can propose and vote on changes to the community’s internal rules (e.g., noise regulations, pet policies) and statutes (e.g., voting rights, property usage).
• Handling Legal Matters: The assembly can decide to take legal action on behalf of the community or respond to lawsuits filed against it. This could involve disputes over unpaid fees, enforcement of community rules, or conflicts with contractors.

Meetings:

• Ordinary Meeting: The General Assembly is required to meet at least once a year for the ordinary annual meeting, where the budget is approved, financial statements are reviewed, and any major projects or repairs are discussed.
• Extraordinary Meetings: Additional meetings, known as extraordinary meetings, can be called as needed to address urgent matters, such as emergency repairs, legal issues, or unexpected budget adjustments.
• Voting Rights: Each owner has the right to vote in the General Assembly, and their voting power is proportional to their ownership percentage (coeficiente de participación). Decisions are typically made by majority vote, but more significant decisions may require a special majority or unanimous consent, depending on the issue.

How These Roles Work Together

The president, administrator, and General Assembly work closely to manage the community effectively:

• The President acts as the face of the community and ensures that the decisions made by the General Assembly are implemented.
• The Administrator handles the practical and administrative work needed to carry out those decisions and manages the day-to-day operations.
• The General Assembly makes collective decisions on behalf of the community and holds the president and administrator accountable for their work.

By clearly defining these roles and responsibilities, the Comunidad de Propietarios ensures a structured and efficient approach to managing shared spaces and resources, maintaining harmony and resolving issues as they arise.

How decisions are made and enforced in a Community of Owners in Spain

In a Comunidad de Propietarios (Community of Owners) in Spain, decision-making is a collective process that ensures that all property owners have a say in the management and operation of the community. The process is governed by the Ley de Propiedad Horizontal (Horizontal Property Law) and involves both the General Assembly of Owners and the community’s elected officials, such as the president and administrator. Decisions typically concern financial matters, maintenance, community rules, and improvements to common areas. Once decisions are made, mechanisms are in place to ensure their enforcement.

1. Decision-Making Process

The decision-making process within a Community of Owners is highly democratic, involving participation from all property owners in key decisions. Here’s how it works:

General Assembly Meetings

• Ordinary General Assembly: At least one meeting must be held annually, where essential decisions such as approving the budget, electing community representatives (e.g., the president), and addressing maintenance issues are discussed and voted on. This is the main decision-making body of the community.
• Extraordinary General Assembly: Additional meetings can be called if urgent issues arise, such as approving emergency repairs or addressing disputes within the community.

Who Participates in Decision-Making?

• All property owners in the community have the right to participate in the General Assembly and vote on decisions. Owners who are unable to attend meetings can delegate their vote to another owner through a written proxy.
• Each owner’s voting power is typically proportional to the size or value of their property, as determined by their coeficiente de participación (ownership percentage). This means that owners of larger properties may have more influence on decisions than owners of smaller properties.

Types of Decisions and Voting Majorities

Decisions in the General Assembly are made based on voting majorities. The type of majority required depends on the nature of the decision:

Simple Majority (51%)
This is the most common voting requirement and is used for routine matters like:

• Approval of the annual budget and community fees.
• Ordinary maintenance decisions (e.g., regular repairs, cleaning contracts).
• Election of the president and administrator.
• Approval of non-essential improvements that do not affect structural integrity.

Three-Fifths Majority
A higher majority (60%) is required for more significant decisions, including:

• Installing new services (e.g., adding elevators or security systems).
• Approving significant changes to common areas that may affect their use or appearance.
• Limiting or altering existing services (e.g., changing the use of a common area).

Unanimous Consent
For fundamental changes that affect the structure or legal framework of the community, unanimous consent from all owners is required. Examples include:

• Altering the community’s statutes or bylaws.
• Modifying the allocation of ownership percentages (coeficientes de participación).
• Changing the fundamental use of the building (e.g., from residential to commercial).

Double Majority
In some cases, such as the approval of building accessibility measures (like installing ramps or elevators for disabled residents), a “double majority” may be required. This means a majority of both the total number of property owners and the ownership shares they represent.

Meeting Quorum

To ensure decisions are legitimate, a quorum must be present at the General Assembly:

• In the first call to meet, at least 50% of ownership shares must be represented.
• If the quorum is not met, a second call to meet (usually held shortly after the first) can proceed with any number of owners present.

2. Enforcement of Decisions

Once decisions are made by the General Assembly, they are binding on all property owners, even those who did not attend the meeting or voted against the decision. Enforcement mechanisms ensure compliance and accountability within the community.

Role of the President and Administrator

• The President: As the legal representative of the community, the president is responsible for ensuring that the decisions made in the General Assembly are implemented. This may involve signing contracts with service providers, arranging for repairs or improvements, or communicating community rules to owners and tenants.
• The Administrator: The administrator, often a hired professional, manages the day-to-day enforcement of decisions. They coordinate contractors, manage the community’s finances, and ensure that property owners pay their community fees.

Enforcement of Financial Obligations

• Community Fees: Property owners are required to contribute to the community budget by paying cuotas comunitarias (community fees). These fees cover the maintenance and management of common areas. If an owner fails to pay their fees, the community can take legal action to recover the debt. Non-payment may also result in the suspension of the owner’s voting rights in the General Assembly until the debt is settled.
• Special Assessments: In addition to regular fees, the General Assembly can impose special assessments for major repairs or improvements. These additional payments are mandatory, and non-compliance can lead to legal consequences.

Enforcement of Community Rules

• Community Bylaws and Internal Regulations: The community often has internal regulations governing the use of common areas (e.g., swimming pools, parking spaces) and the behavior of owners (e.g., noise restrictions). These rules are agreed upon by the General Assembly and must be followed by all owners and residents.
  • Fines and Sanctions: If an owner or tenant violates community rules (e.g., causing damage to common areas or disturbing neighbors with excessive noise), the president or administrator can impose fines or other sanctions. Repeated or serious violations can lead to legal action.
• Court Intervention: If necessary, the community can take legal action against owners who refuse to comply with community decisions or violate rules. For instance, a court can compel an owner to pay unpaid fees or restore common areas to their original condition if they have been altered without permission.

Dispute Resolution

• If an owner disagrees with a decision made by the General Assembly, they can challenge it in court, but they must meet specific conditions. The owner must:
  • Have voted against the decision or been absent from the meeting.
  • File a legal challenge within 30 days of the decision.
  • Demonstrate that the decision violates community statutes or the law.

  However, the court will not intervene in matters of simple preference but will only consider cases where the decision is unlawful or significantly harmful to the community or the individual owner.

3. Legal Consequences for Non-Compliance

• Non-payment of Fees: Owners who do not pay their community fees are subject to legal action. The community can obtain a court ruling to seize the owner’s assets or property to recover the debt. In addition, the delinquent owner’s voting rights in the General Assembly may be suspended until the debt is cleared.
• Failure to Comply with Rules: Owners who repeatedly violate community rules can face escalating fines or legal action. In extreme cases, the community can petition the courts to evict an owner or tenant who is causing significant disturbance or harm to the community (e.g., engaging in illegal activities).
• Unapproved Modifications to Common Areas: If an owner makes unauthorized changes to common areas or external aspects of their property (such as altering the building’s facade), the community can take legal action to compel the owner to restore the property to its original condition and pay for any damage caused.

4. Transparency and Accountability

To ensure that decisions are made transparently and fairly:

• Meeting Minutes: The administrator or president must keep detailed minutes of General Assembly meetings, including the decisions made and the vote results. These minutes must be made available to all property owners.
• Financial Reports: The community’s financial reports, including the annual budget and expenditures, must be presented to the General Assembly for approval. Owners have the right to review financial statements and ensure that their contributions are being spent appropriately.

Conclusion

The decision-making process in a Comunidad de Propietarios is structured to give all property owners a voice in how the community is managed. Once decisions are made by the General Assembly, they are binding and enforced through a combination of financial penalties, legal measures, and community rules. The president, administrator, and assembly work together to ensure that the community operates smoothly, with clear mechanisms for accountability and compliance.

Financial responsibilities

In a Comunidad de Propietarios (Community of Owners) in Spain, all property owners have financial responsibilities related to the maintenance and management of the shared areas and services. These obligations are primarily based on the concept of shared ownership, where all members contribute to the community’s expenses in proportion to their ownership percentage. Below is a detailed explanation of the financial contributions and responsibilities that owners are required to fulfill.

1. Community Fees (Cuotas Comunitarias)

The most common financial obligation for property owners in a Community of Owners is the payment of regular community fees, known as cuotas comunitarias. These fees cover the daily operational costs of managing and maintaining the common areas and services of the building or urbanization.

What Do Community Fees Cover?

Community fees typically fund:

• Maintenance of Common Areas: This includes expenses for cleaning, repairs, and maintenance of shared areas such as staircases, elevators, gardens, swimming pools, parking lots, and other communal facilities.
• Utilities for Common Areas: Costs related to the consumption of electricity, water, and heating for communal areas like hallways, lobbies, and recreational spaces.
• Building Security: This may include the costs of hiring security staff or installing and maintaining security systems like cameras, gates, or intercom systems.
• Insurance: Most communities have insurance policies that cover damage to the building’s structure and common areas, as well as liability insurance in case of accidents in shared spaces.
• Administrative and Management Costs: These include the salary or fees paid to the community’s administrator, as well as any other professional services such as legal or accounting assistance.
• Reserve Fund Contributions: By law, communities are required to maintain a reserve fund (fondo de reserva) to cover emergency repairs or unexpected expenses. The reserve fund must be at least 10% of the community’s annual budget.

How Are Community Fees Calculated?

The amount each property owner must contribute is generally based on their ownership percentage, known as the coeficiente de participación. This coefficient is assigned to each property when the community is first established and is based on factors such as the size, location, and value of the property in relation to the entire building or urbanization.

Owners of larger or more valuable properties typically pay higher community fees than those with smaller or less valuable units.

Payment Schedule

Community fees are usually paid on a monthly, quarterly, or annual basis, depending on the agreements made in the General Assembly of Owners. The exact schedule is determined by the General Assembly, which approves the annual budget and sets the payment terms for the year.

2. Special Assessments

In addition to regular community fees, property owners may be required to contribute to derramas (special assessments) for specific projects or large-scale repairs. Special assessments are one-time payments imposed when the community needs to fund extraordinary expenses that go beyond the scope of the regular budget.

Examples of Special Assessments:

• Major Repairs: Such as structural repairs, roofing, façade renovations, or the replacement of key systems like elevators, plumbing, or electrical infrastructure.
• Improvements: If the community decides to undertake a project to improve the building or shared amenities, such as installing solar panels, upgrading common areas, or enhancing landscaping.
• Emergency Repairs: Unexpected expenses, such as those arising from a natural disaster, fire, or significant damage that requires immediate attention, may lead to a special assessment.

Approval of Special Assessments

Special assessments must be approved by the General Assembly. Depending on the nature of the expense, different voting majorities are required (simple majority, three-fifths, or unanimous approval). Once approved, all owners are obligated to pay the assessment, even if they voted against it.

3. Reserve Fund Contributions

Every Community of Owners is required by law to maintain a reserve fund, which acts as a financial buffer for unforeseen or emergency expenses. This reserve fund is designed to ensure that the community has the necessary resources to address urgent repairs or maintenance without needing to impose special assessments frequently.

Legal Requirement:

• According to Spanish law, the reserve fund must represent at least 10% of the community’s annual budget.
• The contributions to the reserve fund are typically included in the regular community fees. The community may decide to increase the reserve fund if it anticipates larger future expenses.

4. Other Financial Contributions

Apart from community fees and special assessments, property owners may occasionally face additional financial responsibilities, depending on the community’s needs:

• Insurance Premiums: While the community usually has insurance covering common areas, property owners are individually responsible for insuring their own apartments or homes. Some communities may pass part of the insurance premium costs on to owners if the coverage includes shared walls or infrastructure.
• Penalties and Fines: Owners who violate community rules (e.g., causing damage to common areas or not complying with regulations) may be subject to fines. These penalties are decided by the General Assembly and enforced by the president and administrator.

5. Consequences of Non-Payment

Failure to pay community fees, special assessments, or other financial obligations can have serious consequences for property owners. Spanish law provides clear mechanisms for the community to recover unpaid amounts and enforce compliance.

Immediate Consequences:

• Loss of Voting Rights: Owners who fall behind on payments may lose their right to vote in the General Assembly until their debts are settled. This is a key measure to encourage timely payment of fees.
• Interest and Late Fees: The community can impose interest or late fees on unpaid amounts, making the debt larger over time.

Legal Action for Debt Recovery:

• If an owner refuses to pay, the community can take legal action to recover the debt. This process is straightforward, as unpaid community fees are considered a priority debt. The community can file a claim in court, which typically results in a favorable ruling allowing them to seize the owner’s assets or even auction their property to recover the debt.
• Once the debt has been proven in court, the community can place a lien on the property (embargo), ensuring that the debt must be paid before the property can be sold or transferred.

6. Budgeting and Transparency

To ensure transparency and accountability, the community must prepare and approve an annual budget, detailing all expected expenses and financial contributions. The process includes:

• Annual Budget Preparation: The administrator or president prepares a proposed budget, which includes estimates for regular expenses, maintenance, utilities, and the reserve fund. This budget is then presented to the General Assembly for approval.
• Financial Reports: The administrator is required to provide regular financial reports, detailing income (community fees) and expenses, to the General Assembly. Property owners have the right to review these financial statements to ensure funds are being managed correctly.
• Approval Process: The budget must be approved by a simple majority in the General Assembly. Once approved, it sets the basis for calculating each owner’s community fees for the year.

Conclusion

Property owners in a Comunidad de Propietarios in Spain have several financial responsibilities, primarily the payment of community fees and, occasionally, special assessments for larger projects or repairs. These contributions are essential for maintaining the shared areas and ensuring the community functions effectively. Failure to meet these financial obligations can result in loss of voting rights, legal action, and potential liens on the property. It’s essential for property owners to stay informed about the community’s budget and participate in decisions to ensure transparency and accountability in how funds are managed.

How can a Community deal with antisocial behaviour?

Living in a Spanish Community of Owners means adhering to certain rules and regulations that promote a harmonious and respectful living environment. However, situations may arise where some neighbors do not respect these rules, engage in disruptive behavior (such as playing loud music or behaving antisocially), or fail to follow community guidelines. In these cases, the community has several mechanisms to address the problem and enforce compliance.

1. Community Rules and Internal Regulations

Most communities establish internal rules or bylaws (normas de régimen interno) that outline acceptable behavior, including rules regarding:

• Noise levels (especially at night).
• Respect for shared spaces (e.g., not obstructing hallways, proper use of shared facilities).
• Restrictions on certain activities (e.g., using communal areas, parking, pet ownership).
• Timeframes for playing music, parties, or construction work.

These rules are typically approved by the General Assembly of Owners and are binding on all residents, including tenants.

2. Initial Steps to Address Disruptions

1. Direct Communication

• The first and often most effective step is to try to resolve the issue through direct communication. A friendly, respectful conversation with the neighbor may often be enough to resolve minor disputes, such as noise complaints or inappropriate use of common areas. Sometimes, neighbors are unaware that their behavior is disturbing others.

2. Reporting to the President or Administrator

• If the issue persists or if direct communication does not lead to a resolution, the affected owner should report the problem to the president of the community or the administrator. They are responsible for ensuring that the community’s rules are followed.
• The president or administrator may then speak to the offending neighbor on behalf of the community, inform them of the specific rule they are violating, and ask them to cease the disruptive behavior.

3. Fines and Sanctions for Violating Community Rules

If the offending neighbor continues to disregard the rules, the community can impose sanctions, including fines. These measures are aimed at encouraging compliance and maintaining peace within the community.

Process of Imposing Fines

• General Assembly Approval: Fines must be authorized by the General Assembly and must be outlined in the community’s internal rules. This ensures that all property owners are aware of the potential consequences for non-compliance.
• Notification: The neighbor must be officially informed of the violation and the fine imposed. This communication should be documented, ensuring legal compliance in case further action is needed.
• Escalating Sanctions: Fines may escalate for repeated offenses. For example, if a neighbor continues to play loud music late at night despite previous warnings, the fine may increase with each subsequent violation.

4. Legal Action: Injunctions and Evictions

If fines and warnings do not resolve the issue, the community has the option to pursue legal action against the disruptive neighbor, especially if the behavior is causing significant harm to the peaceful living environment of the community.

1. Legal Injunction (Judicial Complaint)

• Filing a Complaint: The community, through its president or administrator, can file a formal legal complaint (demanda judicial) against the neighbor. This is often the case when a neighbor consistently violates noise regulations, engages in antisocial behavior, or otherwise disrupts the peace of the community.
• Court Ruling: If the court rules in favor of the community, it can issue an injunction ordering the neighbor to cease their disruptive activities. Failure to comply with a court order can lead to further legal consequences, including heavier fines or other penalties.

2. Eviction for Severe or Repeated Violations

• In extreme cases, if the neighbor’s behavior is deemed particularly harmful to the community (for example, persistent antisocial behavior, illegal activities, or property damage), the community may petition the courts for the eviction of the tenant or owner from the property.
• This process is typically used as a last resort, but it is legally possible under Spanish law. The court can order the eviction of the resident if it is proven that their behavior is severely damaging the well-being of the community and that other measures (such as fines and warnings) have been ineffective.

5. Noise Regulations: Quiet Hours and Local Ordinances

Many municipalities in Spain also have local ordinances governing noise levels, often referred to as ordenanzas municipales. These laws typically set “quiet hours” during which noise must be kept to a minimum. Common quiet hours are:

• Between 10:00 PM and 8:00 AM on weekdays.
• Between 11:00 PM and 9:00 AM on weekends.

Involvement of Local Authorities

• If a neighbor continuously violates noise regulations during quiet hours and refuses to comply with community rules, residents can call the local authorities (policía local) to report the disturbance. Police can issue fines or warnings based on local noise ordinances, which are enforceable beyond community rules.
• In severe cases, the authorities may take further action, such as visiting the property to ensure compliance or penalizing the offending party with municipal fines.

6. Mediation and Alternative Dispute Resolution

In some communities, if disputes between neighbors become ongoing or escalate, the community may attempt mediation as a way to resolve conflicts without resorting to legal action. Mediation involves an independent mediator who facilitates discussions between the parties involved in an attempt to reach a voluntary resolution.

• Advantages of Mediation: Mediation can be faster and less confrontational than legal proceedings. It allows the parties to find a mutually acceptable solution, which may lead to better long-term relations between neighbors.
• When Mediation Fails: If mediation does not resolve the issue, or if the offending neighbor refuses to participate, legal action may become necessary.

7. Rules for Tenants

In many cases, disruptive behavior may be caused by tenants rather than property owners. It is important to note that:

• Property Owners Are Responsible for Their Tenants: Owners are ultimately responsible for ensuring that their tenants comply with community rules. If a tenant causes disturbances or violates the rules, the property owner may face fines or legal action on behalf of the community.
• Informing Landlords: The community may notify the property owner of their tenant’s disruptive behavior. Owners can take steps to address the issue, such as warning the tenant or terminating the lease agreement if the tenant’s behavior violates the terms of the contract.

8. Preventive Measures

Many communities take preventive measures to minimize disturbances and ensure a harmonious living environment:

• Clear Communication of Rules: Ensuring that all residents, including tenants, are aware of the community rules and quiet hours is a key preventive measure. New residents should be provided with a copy of the internal rules upon moving in.
• Community Engagement: Regular General Assembly meetings allow residents to discuss any ongoing issues and implement changes to rules or enforcement measures to better suit the community’s needs.

Conclusion

A Comunidad de Propietarios has several tools at its disposal to address neighbors who do not respect community rules or engage in disruptive behavior such as playing loud music or behaving antisocially. Through communication, fines, legal action, and preventive measures, the community can enforce rules and maintain a peaceful environment for all residents. In extreme cases, eviction or legal injunctions may be necessary to resolve persistent or severe disturbances.

What to do about illegal building work by a member of the Community of Owners?

If a member of a Community of Owners in Spain builds something illegal—such as an unauthorized extension, modification, or structure that violates community rules, municipal regulations, or legal construction standards—the community has several legal and administrative options to address the situation. Illegal constructions can affect the shared interests of the community and can cause safety, aesthetic, or legal issues for the building or development as a whole.

1. Assessing the Nature of the Illegal Construction

The first step is for the community to assess whether the construction is indeed illegal or unauthorized. This may involve determining whether the work:

• Violates the community’s internal rules or bylaws.
• Lacks the necessary building permits or municipal authorization from the local government.
• Affects the structural integrity or safety of the building.
• Alters the appearance of the building, especially if located in areas that must remain uniform, such as facades, terraces, or common areas.
• Encroaches upon common areas that belong to all property owners, such as gardens, rooftops, or passageways.

2. Internal Community Action: Reporting and Notification

Once the illegal construction is identified, the community can take the following steps internally:

1. Notify the Offending Owner

• The community, through the president or administrator, should formally notify the owner who has carried out the unauthorized work. The notification should outline the specific violations (e.g., lack of permits, violation of community rules) and request that the owner either:
  • Provide proof of permits or compliance with regulations, or
  • Remove or rectify the illegal construction within a specified time frame.
• The notification should be written and officially documented to ensure legal compliance if further action is needed.

2. Request Compliance with Community Rules

• If the construction violates community rules (such as unauthorized modifications to external facades, balconies, or shared areas), the community can request that the owner restore the property to its original condition or seek approval from the General Assembly, depending on the severity of the modification.
• The owner may be asked to attend a General Assembly meeting to discuss the issue and seek approval retroactively, although approval is not guaranteed, especially if the construction affects other owners or common areas.

3. Fines and Sanctions

• If the owner refuses to comply with the request to remove or modify the illegal structure, the community can impose fines or sanctions if such measures are permitted by the community’s internal rules. These fines are intended to encourage compliance and can escalate for ongoing violations.

3. Legal Action through the Courts

If the owner does not respond to internal requests or fines and refuses to remove the illegal construction, the community can take formal legal action. There are several legal remedies available:

1. Filing a Legal Complaint (Judicial Action)

• The community can file a lawsuit against the offending owner in court, requesting a judicial order to remove or dismantle the illegal construction. In many cases, if the construction violates local building codes or affects shared spaces, the court will rule in favor of the community.
• The legal action can include demands for:
  • Immediate removal of the illegal construction.
  • Restoration of common areas or the building’s original condition.
  • Compensation for any damages caused by the unauthorized work.
• If the court rules in favor of the community, the owner will be legally obligated to comply with the ruling. Failure to comply could lead to further penalties, including legal costs, increased fines, and possible enforcement by local authorities.

2. Enforcement of Structural or Safety Violations

• If the illegal construction poses a risk to the structural integrity or safety of the building, the community has a strong case for demanding immediate removal. The courts generally prioritize safety concerns, and the community may be able to obtain a fast-tracked legal order to address the issue.

4. Municipal Action: Involvement of Local Authorities

In addition to internal and legal measures, the community can involve local government authorities if the illegal construction violates municipal building regulations or zoning laws.

1. Report to the Local Council (Ayuntamiento)

• The community can file a formal complaint with the local council (ayuntamiento) or the urban planning department, informing them of the illegal construction. The municipality will investigate whether the construction was carried out without the necessary permits or in violation of local building regulations.

2. Municipal Inspection and Enforcement

• Once a complaint is filed, the local authorities will typically send an inspector to the property to assess the situation. If the construction is found to be illegal or non-compliant with building codes, the municipality can:
  • Issue a stop-work order if the construction is still in progress.
  • Impose fines on the property owner for violating building regulations.
  • Order the owner to demolish or remove the illegal construction.
• In some cases, if the owner refuses to comply, the municipality can carry out the demolition and charge the costs to the property owner.

5. Common Areas: Encroachments or Unauthorized Use

If the illegal construction involves common areas, such as using a communal terrace or garden without permission or altering shared spaces like rooftops or parking areas, the community has additional legal grounds to act.

1. Legal Right to Protect Common Areas

• Spanish law provides strong protections for common areas, and individual owners are not permitted to make changes to these areas without the explicit approval of the General Assembly. Unauthorized use or modification of common areas can lead to swift legal action by the community.
• The community can request that the court order the owner to remove any unauthorized construction or alterations made to common areas and restore the space to its original condition.

2. Financial Responsibility for Damages

• If the illegal construction has caused damage to common areas (e.g., damaging walls, infrastructure, or utilities), the owner responsible for the construction may be held financially liable for the repairs. The community can seek compensation through legal action if necessary.

6. Role of the General Assembly

The General Assembly of Owners plays a critical role in addressing illegal constructions:

• Discuss and Vote on the Issue: The General Assembly can discuss the illegal construction at its regular or extraordinary meetings. A vote can be taken to determine how to address the situation, including taking legal action, imposing fines, or involving local authorities.
• Legal Approval for Structural Changes: In cases where the owner seeks approval for structural changes or alterations after the fact, the General Assembly can vote on whether to approve the modification. Certain types of changes, especially those that affect the building’s structure, may require a qualified majority or unanimous approval.
• Authority to Act: The president, administrator, or an external lawyer hired by the community will typically represent the community in legal actions or negotiations with authorities. The General Assembly must approve these actions, especially if legal costs are involved.

7. Consequences of Non-Compliance

If the owner continues to ignore warnings, fines, and legal orders, several consequences can follow:

• Increased Fines: Both the community and local authorities can impose escalating fines for continued non-compliance with rules and legal orders.
• Property Liens: The community can request that a lien be placed on the owner’s property until the fines are paid or the illegal construction is removed.
• Forced Removal: If the owner refuses to dismantle the illegal construction, the community or local authorities may carry out the removal or demolition and pass the costs on to the owner.

Conclusion

In a Comunidad de Propietarios in Spain, illegal construction by a property owner can be addressed through a combination of internal community measures, legal action, and involvement of local authorities. The community has the right to demand the removal of unauthorized structures, protect common areas, and enforce compliance with community rules and local building regulations. Through fines, legal challenges, and municipal involvement, the community can ensure that the illegal construction is rectified and that harmony and safety are restored within the shared living environment.

Time limits for community action against illegal building work in Spain

There are time limits, or statutes of limitations, within which a Community of Owners can take action against illegal building work carried out by one of its members. These time limits depend on the nature of the violation and the legal consequences being sought. Below is an explanation of the relevant time limits and how they apply.

1. Illegal Construction in Common Areas

If the illegal construction affects common areas, the community has stronger legal grounds and the ability to take action more flexibly. According to the Ley de Propiedad Horizontal (Horizontal Property Law), alterations to common elements that have not been approved by the General Assembly can be challenged at any time, as long as the modification is ongoing or causing harm.

• No Time Limit for Common Areas: There is no specific time limit when the illegal building work involves common areas. The community can act at any time after the construction has been completed. This is because common areas belong to all the property owners, and any unauthorized modification affects the entire community. Therefore, if a property owner builds something that encroaches on common property or alters a common element, the community can demand its removal, even if significant time has passed.

2. Illegal Construction on Private Property Affecting the Community

If the illegal construction took place on an owner’s private property but violates community rules (such as modifying the external appearance of the building, impacting structural integrity, or causing nuisance), the community can also take action. However, in these cases, there are time limits for challenging the work.

1. Civil Action under the Horizontal Property Law

• Time Limit: The time limit for the community to take action for violations of the Ley de Propiedad Horizontal (e.g., unapproved alterations to private property that affect the external appearance or structure of the building) is 15 years. This time limit is based on the general statute of limitations for civil actions related to property rights and obligations under Spanish civil law (as per the reforms made to the Civil Code in 2015).
• Action: The community can file a legal claim within this period, requesting that the illegal construction be removed or modified to comply with the community’s rules or regulations.

2. Municipal Regulations and Building Codes

If the illegal construction violates municipal regulations or urban planning laws (e.g., lacking the necessary building permits), local authorities may be able to enforce the removal of the structure or impose fines. Municipal authorities also have time limits for taking action.

• Time Limit for Municipal Action: The general time limit for the local council (ayuntamiento) to act on unauthorized building work is four years from the date the illegal construction was completed. After this period, the work may be considered “legalized” by prescription, and the municipality may no longer enforce its removal, unless the construction poses a safety risk or violates protected building codes (e.g., in historical areas).

• Exceptions for Safety Risks: If the illegal construction poses a risk to safety (such as compromising the structural integrity of the building or violating fire safety standards), the community or local authorities can take action beyond the four-year limit. Public safety concerns override prescription periods, and urgent legal action may be taken at any time to address these issues.

3. Impact on Future Owners

It is important to note that illegal constructions carried out by a current owner can affect future owners of the property. If an owner sells their property after performing unauthorized building work, the new owner may inherit the responsibility for removing the illegal structure if the community or authorities take action. Therefore, the statute of limitations applies regardless of ownership changes, and the community can pursue legal action against the current owner within the prescribed time frame.

4. What Happens After the Time Limit?

If the time limit for taking action expires (15 years for civil actions or 4 years for municipal actions), it becomes much more difficult for the community to demand the removal of the illegal construction. However, this does not mean that the construction becomes fully “legal”—it simply means that the community may no longer have the legal right to demand its removal through court action. However, certain illegal constructions could still face municipal scrutiny if they violate ongoing safety regulations or specific protected statuses (e.g., historical preservation areas).

Conclusion

• For illegal construction in common areas, the community can take action at any time, as there is no statute of limitations.
• For illegal construction on private property that affects the community or violates community rules, the time limit for taking legal action is 15 years.
• For municipal violations (e.g., lack of permits), the local authorities have a four-year limit to act, unless the construction poses a safety risk.

In any case, it is advisable for the community to act as soon as the illegal construction is identified to avoid complications with prescription periods and ensure that the interests of the community are protected.

Disclaimer: This information is intended to provide a general understanding of the time limits for taking action against illegal building work in Spain and is not legal advice. Laws and their interpretations can vary and may change over time. For advice on specific situations, please consult a qualified lawyer specializing in Spanish property law.

Regulating or prohibiting tourist rentals in a Community of Owners in Spain

Tourist rentals (alquileres turísticos), where property owners rent out their homes or apartments on a short-term basis (e.g., through platforms like Airbnb or Booking.com), have become increasingly common in Spain. However, the growth of this type of rental has raised concerns in many Comunidades de Propietarios (Communities of Owners), particularly regarding noise, increased wear and tear on common areas, and security risks.

The question of whether a community can regulate or prohibit tourist rentals depends on several legal factors, including the Ley de Propiedad Horizontal (Horizontal Property Law), regional regulations, and decisions made by the General Assembly of Owners. Below is an explanation of the legal framework and how communities can approach the regulation or prohibition of tourist rentals.

1. Current Legal Framework for Tourist Rentals

In Spain, tourist rentals are regulated both at the national level through the Horizontal Property Law and at the regional level, as each autonomous community (e.g., Andalusia, Catalonia, Madrid) has its own specific laws and regulations governing short-term rentals. These regulations establish requirements for licensing, occupancy limits, and the management of tourist accommodations.

Regional Regulations

Most regions in Spain require property owners to register their properties with the local authorities if they wish to rent them out on a short-term basis for tourism purposes. These regional regulations often impose conditions such as:

• Registration and licensing requirements.
• Occupancy limits.
• Safety and health regulations (e.g., fire safety standards).
• Minimum standards for the condition of the property.

However, these regional regulations do not always provide clarity on the role of a Comunidad de Propietarios in regulating or prohibiting tourist rentals.

2. The Role of the Community of Owners

Under the Ley de Propiedad Horizontal (Horizontal Property Law), a Community of Owners has the ability to set rules and regulations governing the use of private properties within the community, especially when these rules affect the shared interests of all property owners. However, the community’s ability to prohibit or regulate tourist rentals has specific legal limits.

Prohibiting Tourist Rentals

The Horizontal Property Law was amended in 2019 to allow communities to impose limitations on or prohibit tourist rentals under certain conditions:

• Three-Fifths Majority Required: To prohibit or restrict tourist rentals in a building or development, the General Assembly of Owners must vote with a three-fifths majority of the total ownership shares. This means that 60% of the property owners (and their corresponding ownership percentages) must agree to impose such restrictions.
• Inclusion in Community Bylaws: If the General Assembly votes to prohibit or restrict tourist rentals, this decision must be added to the community’s bylaws (estatutos comunitarios). The restriction must be clearly stated in the bylaws to be enforceable.

Grandfather Clause for Existing Tourist Rentals

If tourist rentals were already taking place before the new prohibition was voted on and added to the bylaws, property owners who were already engaged in tourist rentals may be allowed to continue renting their properties. This is known as a “grandfather clause,” meaning that the new prohibition may not apply retroactively to rentals that were legal at the time they began.

Additional Fees for Tourist Rentals

In addition to prohibiting or restricting tourist rentals, a community can also decide to impose additional fees on property owners who rent their homes for tourism purposes. This is because tourist rentals often lead to increased use of common areas (e.g., elevators, swimming pools, parking spaces), which can lead to higher maintenance costs for the community.

• Majority Vote (Three-Fifths): The General Assembly can vote with a three-fifths majority to impose a surcharge on property owners who engage in tourist rentals. This surcharge is intended to cover the extra costs generated by the higher use of shared facilities.
• The additional fees cannot exceed 20% of the community fees for that property.

3. Practical Considerations

If a community wishes to control or prohibit tourist rentals, it must follow a formal process and consider several practical aspects:

1. Call a General Assembly Meeting

• A special or ordinary General Assembly meeting must be called to discuss the issue of tourist rentals. The topic must be clearly included on the meeting agenda so that all owners are aware of the issue to be discussed and voted on.

2. Voting on the Proposal

• During the General Assembly meeting, owners will vote on whether to prohibit or restrict tourist rentals, or to impose additional fees on properties engaged in such rentals. The vote requires a three-fifths majority of ownership shares to pass.

3. Updating the Community Bylaws

• If the proposal is approved, the community must update its bylaws to reflect the new restriction or fee structure. The updated bylaws should be registered with the Property Registry (Registro de la Propiedad) to ensure that they are legally binding and enforceable against all property owners.

4. Enforcing the Decision

• Once the prohibition or restriction is part of the bylaws, the community can enforce the rules through fines or legal action if property owners continue to rent their homes for tourist purposes. Non-compliant owners may be fined, and the community may take legal action to compel them to stop the rental activity.

4. Challenges and Limitations

Despite the legal framework, prohibiting or restricting tourist rentals in a Community of Owners can present certain challenges:

• Reaching the Required Majority: Achieving the three-fifths majority required to pass a prohibition on tourist rentals can be difficult, especially in larger communities where owners may have different interests (e.g., some may rely on tourist rentals for income).
• Enforcing Prohibitions: Once the prohibition is in place, the community will need to monitor compliance and may need to take legal action against owners who violate the new rules. This can be a time-consuming and expensive process.
• Retroactive Application: Prohibitions typically cannot be applied retroactively. Owners who were already engaging in tourist rentals before the prohibition was adopted may be able to continue renting their properties, creating potential conflicts within the community.

5. Regional Variations

It’s important to note that regional regulations governing tourist rentals can also impact how communities handle this issue. In some regions, there may be additional rules or procedures that affect whether and how communities can restrict or prohibit tourist rentals. Owners and communities should consult with legal professionals or local authorities to understand how these regional laws interact with national property laws.

Conclusion

A Comunidad de Propietarios in Spain has the ability to regulate or even prohibit tourist rentals under certain conditions, provided that the community follows the legal procedures established by the Horizontal Property Law. To prohibit or restrict tourist rentals, a three-fifths majority vote is required, and the decision must be reflected in the community bylaws. While prohibiting tourist rentals is possible, it can be challenging to achieve the necessary support and enforce the restrictions effectively. In cases where a full prohibition is not possible, the community may also consider imposing additional fees on properties that are rented out for short-term tourism purposes.

Who pays the community fees for properties that have never sold?

There are still many buildings and complexes in Spain with a large number of homes, premises and parking spaces still in the hands of their developers. This situation is much more common in coastal resorts where there’s an abundance of holiday homes. In these cases, who should pay community fee debts when properties haven’t been sold?

The person responsible for community charges is the owner and therefore, in this case, the developer is obliged to pay the fees for the upkeep and maintenance of the communal services and facilities in the building or complex. This includes extra charges approved by the community, for which the owner is liable until the property is sold.

This means that any clause included by the developer in the community statutes stating the developer is not liable for community fees is null and void. Such a clause would give the developer and future buyers an advantage and negatively affect the rest of owners who would have to pay higher fees.

They would not be legally liable to pay these according to Article 9.1 in the Community Properties Law (Ley de Propiedad Horizontal in Spanish). This article outlines owner obligations to contribute to all general expenses to maintain the property and any services, charges and responsibilities that are shared by all members of the Community of Owners.

It’s worth pointing out that Article 9.2 explains that even if an owner doesn’t make use of particular service, he is not exempt from paying costs towards it.

Lastly, if the developer isn’t up-to-date with payments, a situation that usually have grave financial consequences for the community, the developer loses the right to vote at meetings. This is the same for all owners who owe community fees. This allows the rest of owners to come to necessary agreements over taking legal action.

It’s particularly interesting to note that a new owner is liable for community fee debts for the year to date and for the previous three years (four years in Catalunya). Buyers interested in purchasing a new build should therefore demand that the developer provides a certificate stating the property’s debts.

Habitation certificates for Communities of Owners

In Spain, there is a regulation that requires buildings older than 50 years to undergo an inspection known as the Inspección Técnica de Edificios (ITE), which is part of the broader Certificado de Habitabilidad process (certificate of habitation). This inspection ensures that the building remains in a safe and habitable condition.

Here’s how it works:

Initial Inspection (ITE): When a building reaches 50 years of age, it must undergo a technical inspection to verify its structural safety and general condition. This inspection is conducted by a certified architect or surveyor and assesses the state of the building to ensure it complies with health, safety, and habitability standards.

Renewal Every 10 Years: After the first inspection at 50 years, the building must undergo regular inspections every 10 years to maintain its habitability certificate. If the building passes, a new Habitation Certificate is issued or renewed, which is often required for utilities and property transactions.

Regional Variations: While the 50-year rule is a general guideline, there can be variations based on the autonomous region or municipality in Spain. Some regions may have slightly different requirements or additional rules related to building inspections and habitation certification.

Therefore, while it’s not exactly a requirement to get a completely new certificate every 50 years, the inspection process is mandatory at that time to ensure the building remains in habitable condition.

What about individual homes within communities?

The requirement for a Certificate of Habitation and the Technical Building Inspection (ITE) primarily applies to the building as a whole rather than to individual apartments. Here are the key points regarding apartment buildings:

1. Building-Wide Inspection: The ITE is conducted for the entire building, assessing its structural integrity, safety, and compliance with habitability standards. This inspection focuses on common areas, the building’s facade, roof, and overall condition.
2. Individual Apartments: While the individual apartments do not need separate certificates of habitation, the overall condition of the building can affect the habitability status of the apartments. If the building fails its inspection, the entire building may be deemed uninhabitable until the necessary repairs are made.
3. Owner Responsibilities: Individual apartment owners are responsible for maintaining their units, but they must comply with any regulations and decisions made by the Community of Wwners. This includes contributing to maintenance and repairs required by the collective decisions of the homeowners’ association, especially if the building fails its ITE.
4. Lease and Sales Transactions: When selling or renting an apartment, landlords or sellers often need to present a valid Habitation Certificate for the entire building. If the building’s ITE is not up to date or if the building has been marked as uninhabitable, this can impact the ability to lease or sell individual units.
5. Regional Regulations: As with many regulations in Spain, there may be some variations based on local laws or specific requirements imposed by the autonomous community or municipality.

In summary, while individual apartments do not need separate habitation certificates, they are affected by the overall status of the building. The ITE and associated certificates pertain to the building as a whole, ensuring that it meets safety and habitability standards for all residents.

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Disclaimer

This guide is intended to provide general information and is not legal advice. The author and publisher are not liable for any damages or losses resulting from actions taken based on the information provided in this guide. For specific legal advice, consult a qualified professional.