Horizontal Property Rights Short version

The Horizontal Property Act regulates a special kind of property by flats or premises which is the most common one in our towns.

According to this co-ownership system, every owner has on one hand the individual and exclusive property right over his/her dwelling or premise and also, the co-ownership, together with the rest of the owners, over the common elements of the building ( stairs, patios, yards, entrances, elevators, structural elements, power supplies installations,etc).

Every apartment or premise has a quota or share of ownership (cuota de participación) of the total value of the building, which is the scale to determine the percentage on the community expenses to be paid by each owner.

When you HYPERLINK "http://www.eyeonspain.com/spain-magazine/communityhorizontal-1.aspx"buy an apartment under this Law, you buy both an apartment and a quota or share of ownership over the common elements.

When you are buying a house, you should consult the constitutive title of the horizontal property in the Land Registry. It is a document which describes the building as a general unit and every flat or premise individually, with indication of surface, floor and annexes such as parking garages, attics or storage rooms.

The proportional share of every flat or premise is fixed having as the calculation base, the net usable HYPERLINK "http://www.eyeonspain.com/spain-magazine/communityhorizontal-1.aspx"area of every flat or premise in relation to the whole building, its interior and exterior location, situation, and the kind of use of common elements that the owner is supposed to be doing in the future.

This title also has certain regulations of the building use, its flats and premises, installations and HYPERLINK "http://www.eyeonspain.com/spain-magazine/communityhorizontal-1.aspx"services, expenses, administration, maintenance and repairs, which constitute the Statutes of the Community of Owners. Every new owner will be bound automatically by the Statutes and the decisions taken at previous meetings.

It is very important to know that these statutes can be modified only by unanimous consent of all the owners. Therefore, for instance, if the statutes prohibit the use the apartments as offices (open to public), if there is a neighbor who wants to open a practice there, he will have to get the unanimous consent of all the neighbors in a meeting.

What building works are allowed?

Every owner can just do building works in his flat or premise, modifying its architectural elements, installations and services, provided: The safety of the building, its general framework and its outer configuration and

condition is not altered.

None of the other owners’ rights is damaged.

Those building works are previously communicated to the Community.

Owners can do no alterations in the rest of the building. If urgent repairs are needed, it will have to be communicated to the administrator.

Which are the forbidden activities?

Owners and users of apartments or premises cannot perform in their properties or in the rest of the building, those activities which are forbidden in the statutes, those which are damaging for the building or are against the General Rules on annoying, unhealthy, harmful, dangerous or illicit activities.

The President of the Community of Owners either by own initiative or by the initiative of any of the owners or users, must request to whoever may do any of the before mentioned prohibited activities to immediately stop, or inform that person about the legal actions against him/her that might be started if the behavior is not stopped.

If the offender persist doing it, the President, once authorized by the committee of owners, can take it into Court. In order to do that, the Community needs to use a lawyer.

Once the lawsuit is in the Courts with the attached document on the solicitation made to the offender, together with the agreement taken by the board of owners, the Judge can pass a provisional decision on the immediate cessation of the prohibited activity and pass any other precautionary measure.

After the necessary judicial procedure, the Judge will pass judgment in order to pass any or all the following measures:

The offender to stop the forbidden activity once and for all.

The offender to compensate the Community for the produced damages.

The offender to be deprived of the right to use the house or premise for a period no longer than three years.

A lawyer can provide legal advice on these issues according to the specific particulars of every case.

Joint and division of apartments and/or premises

Apartments and premises can be divided and/or joined together, either totally or partially.

For those cases, the unanimous consent of the Community of Owners is required, and new shares need to be calculated for the refurbished flats.

Obligations of owners The most important obligations of the owner are, inter alia, the following ones: To respect the general installations of the Community and other communal elements, both of individual and of general use, included or not in his apartment, making an adequate use of them and trying to avoid by all means making any kind of damages on them.

To keep his apartment in a good state of conservation, so that it won´t damage the community or other owners, compensating for the damages arised from his negligence or the negligence of those people who are under his responsibility.

To allow in his own apartment all the repairs which are needed for the servicing of the building and allow the essentials (access, lights, waters) which are indispensable for the creation of shared HYPERLINK "http://www.eyeonspain.com/spain-magazine/ community-horizontal-3.aspx.aspx"services of public interest (i.e. lifts, reception, guards, etc.) holding all the rights to be compensated by the Community for the damages caused.

To allow the entrance of workmen into his apartment or premise for repairs, as stated in the previous point.

To contribute, according to his share, to the general expenses for the adequate maintenance of the building, its services, charges and responsibilities.

It is very important to comment that the purchaser of a flat is responsible, and that the purchased house is the guarantee, of the payment of all the fees owed to the Community for maintenance of shared services during the purchase year and the year before.

When signing the deeds, the seller must be updated with the Community payments and it needs to be formally expressed (the balance with the Community of owners) To do so, the seller will ask the Secretary of the Community of owners to verify the state of his debts. This certification is obligatory for the signing of the deeds, without that document, the deed cannot be executed (unless the buyer expressly releases the seller from that obligation) To contribute, according to the share, for the rising of the reserve fund which is obligatory in the Community of Owners in HYPERLINK "http://www.eyeonspain.com/ spain-magazine/community-horizontal-3.aspx.aspx"order to face conservation and

reparation works.

The reserve fund must have at least the 5% of the last ordinary budget of the community.

The community can hire insurance on the reserve funds in order to cover possible damages or to contract the general maintenance of the building and its general installations.

To act with due diligence when using the building and when relating to the rest of the owners, being responsible before them of every infringement and damage.

To communicate to the secretary of the Community, the mail address in HYPERLINK "http://www.eyeonspain.com/spain-magazine/communityhorizontal-3.aspx.aspx"Spain for notifications regarding the Community.

If there is no notice of this mail address, it will be legally enough just the notification made to the apartment or premise and handed to whoever is using it at that moment.

If an attempt is made in order to notify the owner about something anything regarding the community and it become impossible to make it in the above referred place, this notification will be considered as fully and legally made by the posting of the communication in the bulletin board of the Community or at any visible place of Community use, formally expressing the date and reasons why this way of notification is used, signed by the Secretary and with the approval of the president. Notification made this way produces same effects as the notice made in person.

Every change of ownership title over the house/premise needs to be communicated to the secretary of the Community, by any mean which gives evidence of the receiving.

Therefore if you don´t communicate the sale of your property to the Secretary or you don´t do it in a clear way, you will keep being liable of the debts of the Community arised after the sale.(even though you can always claim the buyer back of the amount that was paid by you).

Obligations of the Community of Owners The Community of Owners (CO) is obliged to make all the required building works for the due maintenance and conservation of the building and its HYPERLINK "http:// www.eyeonspain.com/spain-magazine/community-horizontal-4.aspx"services, so it will keep the required structural, tightness, habitability and safety conditions.

On the other hand, those owners who oppose or delay the execution of the Authority requirements will be individually responsible of the sanctions that may be imposed by the Administration. Therefore, for instance, if the building is about to fall down and the Town

Hall requires the repairs to the building, if there is a reticent neighbor and this makes the Community not obey, this neighbor will be liable, individually, of the sanction that may be imposed by the Town Hall.

Improvements in the building No owner can demand new installations, services or improvements in the building which are not necessary for the needed conservation, habitability and safety of the building (i.e.To change the front door of the building entrance for a more fashionable one… etc.)

If community decisions for the installation of unnecessary things are reached and the installment to pay them is over 3 ordinary monthly installments for common expenses, that neighbor who doesn´t agree with them, is not obliged to pay them, and his/her community monthly installment cannot be increased or changed, even when it is impossible to deprive him/her of the improvement made by the Community.

If the deprivement is possible and later on the dissident neighbor wants to take advantage of the improvements, he will have to pay his installment on the expenses related to the installation and maintenance, duly updated, applying the corresponding legal interest.

Innovations which turn useless any part of the building for any neighbor will always require the express consent of this specific owner.

Attendance to the general meeting.

Attendance to the general meeting can be made in person or by a solicitor or a lawyer. You can also grant power of attorney to someone else, just by signing an authorization.

If any apartment or premise belongs undivided (“pro indiviso”) (jointly) to different owners, they should name a person to represent them and vote at the meeting.

The owners who are not up-to-date with payments to the Community when this starts, (and they have not opposed those debts or have not made a judicial or notary deposit of the due amount), are allowed to deliberate but will not have the right to vote.

The minutes of the meeting need to mention those private owners who have been deprived of their right to vote, their votes will not be taken into HYPERLINK "http:// www.eyeonspain.com/spain-magazine/community-horizontal-5.aspx"account to reach the necessary majority for agreements.

Meetings The General Meeting of owners must be held at least once a year in HYPERLINK "http://www.eyeonspain.com/spain-magazine/community-horizontal-5.aspx"order to approve the budget and accounts and also in every occasion when the president

considers it as suitable, or when it is requested by a quarter of the owners or by a number of them which , at least, represents 25 % of the community.

The announcement of the general meeting must be made by the President and, in his absence, by the promoters of the meeting, by making a list of the subjects to be discussed and by choosing date and time to be held in first and in second call.

The announcement must contain a list of the owners who are not up-to-date with payments to the Community and a warning of their deprivation of the right to vote.

Any owner can ask the General Meeting to study or discuss on any subject of interest to the Community; to do so, it must present a document, identifying those subjects considered of general interest to the President, who must include them in the order of the day of the following meeting to be celebrated.

If the quorum is not reached at first call, those owners who represent, in their turn, the majority of the shares can make a second call, which will be held without any quorum.

The General Meeting must be held, in second call, in the place, date and time which was mentioned in first citation, and it can be held just half an hour after the failed first call.

Generally, both calls are included in the same citation.

The citation for the annual General Meeting must be done at least 6 days in advance and, in case of extraordinary meetings, the sooner for all the interested parties to know about it.

The General Meeting can be held even without the call of the President, if the owners decide it.

Voting Agreements of the General Meeting are submitted to; inter alia, the following rules: Unanimity is just required for approving or modifying the rules contained in the constitutive title of horizontal property or in the statutes of the Community.

The establishment or suppression of the HYPERLINK "http://www.eyeonspain.com/ spain-magazine/community-horizontal-5.aspx"services of the lift, porter’s lodge porter’s office, security and any other common service of general interest, even when this implies the modification of the constitutive title or the statutes, does not require unanimity, it just requires the favorable vote of three fifths of the total of the owners that, also, represent the three fifths of the shares.

The realization of works or the establishment of new common services intended to suppress architectural obstacles that make difficult the access or mobility of disabled persons, even when it implies the modification of the constitutive title or the statutes, do not require unanimity, but the favorable vote of the majority of the owners, that at the same

time, represent the majority of the shares.

The vote of those absent owners to a General Meeting, once they have been duly cited and informed by those owners who are present, and have not disagreed in writing to the Secretary within a period of 30 days from the date the decisions have been communicated to them by the rest of the owners, will be considered as favorable to the agreement.

The agreements adopted in valid form are obligatory to all the owners.

The installation of common substructures for the access to telecommunication services (collective antennas, digital television, etc), or the adaptation of those already existing as well as the installation of solar energy or any else of the necessary substructure to access to new collective energy supplies (natural gas, electricity, etc) can be decided, at the request of any owner, with the favorable vote of just one third of the owners who also represent, one third of the shares.

The Community will not charge the costs of the installation or adaptation of those common substructures, not even for maintenance, on those owners who have not expressly voted in favor of that agreement.

Nevertheless, if they later require the access to telecommunication services or to energy supplies, and this implies for them to make use of the new substructure or the adaptation made, they can be authorized always they pay the amount that had duly corresponded to them, by the application of the correspondent legal interest.

It is just necessary the vote of the majority of owners who also represent the majority of the shares for the validity for any other sort of agreement.

At the second call, those agreements adopted by the majority of the present owners, are valid if they also represent, more than the half of the present shares.

When the majority cannot be reached by the procedures established in the previous paragraph, it can passed to the Judge of First Instance to decide regarding that.

Can agreements of general meeting be opposed?

Agreements of the General Meeting can be judicially opposed in the following cases:

When they are against Law or Statutes of the Community of owners.

When they seriously damage the interests of the Community or those of one or some of the owners.

When they pose a serious damage to any owner who is not obliged to bear it or they have been adopted with abuse of process.

Only those owners who had negatively voted in the General Meeting, other than those

who were absent for any reason and those who had been improperly removed of their right to vote, can judicially oppose the agreements.

The owner must be updated on their payments to the Community or to firstly deposit in the Courts any due amount.

The deadline to oppose these agreements is within 3 months after the agreement was made by the owners´ meeting, except for those agreements that infringe either Law or Statutes of the Community of Owners, in these cases the deadline for opposition is one year.

It could be convenient to ask a lawyer about the convenient legal action.

Minutes of General Meeting of Owners The agreements of the general Meeting of owners must be written on an official Book of Minutes, this book is approved by the Land Registry where the building is registered.

The minutes of each meeting must contain: The date and place of the meeting HYPERLINK "http://www.eyeonspain.com/spainmagazine/community-horizontal-6.aspx"location.

The promoters of the location Mentions to the ordinary or extraordinary character of the meeting and if first or second call.

A list of all the assistants, their respective shares and the owners who are being represented by others, with indication of their shares.

The Agenda.

The agreements adopted, indication, in case that it was relevant for the validity of the agreement, of the owners´ names who voted in favor or against those agreements, and their shares.

The minutes must be finished with the signatures of the President and the Secretary that same day or within the following ten natural days.

The minutes of the meetings must be sent to all the owners at the address designed by them, if address is unknown, they will be sent to the apartment which belongs to the Community or in the notice-board.

Any errors in the minutes can be corrected if expresses unmistakably the date and location, the present owners, in person or by representation, and the agreements met, with the indication of the votes in favor or against.

The correction must be made before the following General meeting of the owners that must ratify the corrected version.

The Secretary must keep the books of minutes of the Meeting of owners.

Likewise he must keep, during a period of time of 5 years, the calls, communications, powers of representations and the rest of the important documents of the meetings.

Written by: Maria de Castro About the author: Maria de Castro is a Spanish Lawyer and the Director of the Law Firm HYPERLINK "http://www.costaluzlawyers.es/" \t "_blank"www.costaluzlawyers.es.

Costa Luz Lawyers are contract and consumer real estate law specialists covering all parts of HYPERLINK "http://www.eyeonspain.com/spain-magazine/communityhorizontal-6.aspx"Spain. You can contact Maria at HYPERLINK "mailto:mldecastro@costaluzlawyers.es"mldecastro@costaluzlawyers.es