The removal of architectural barriers and the redesign of communal property to make it accessible for people with disabilities
Since measures to remove architectural barriers or to achieve and maintain accessibility or barrier-free access are privileged in many respects over other construction measures, a separate presentation has been chosen for the sake of clarity and better organisation, and the previous section did not go into detail about these measures. They will be explained in more detail below.
At this point, a distinction should therefore be made between the old and new legal situations, and it should be noted that all decisions made before 28 June 2013 are governed by the old law, while all new regulations apply to the new decisions as of 28 June 2013.
Legal situation until 28 June 2013
With regard to the old legal situation, the relevant provisions are essentially Articles 10 (paragraphs 1, 2, 4 and 5), 11 (paragraphs 1 and 3) and 17.1.2, 17.1.3 and 17.4 LPH in their respective versions prior to 28 June 2013.
As these regulations had to be reconciled with each other, their scattered nature and the lack of a central provision made them difficult to understand. The sometimes ambiguous wording of these standards further exacerbated the problems regarding their correct application.
Looking at each standard in isolation, the following picture emerged:
Article 10.1 LPH (old version) established the community’s obligation to carry out all necessary repair and maintenance measures to ensure that the common property and its facilities (among other things) remained accessible in an adequate manner and in accordance with their original condition.
Article 10.2 LPH (old version) obliged the community, at the request of an owner, to provide barrier-free access to the communal facilities if people over the age of 70 or people with disabilities lived, worked or performed voluntary services in their household or to install the appropriate (specific or disability-specific) mechanical or electronic equipment to enable the designated groups of people to maintain contact with the outside world more easily and to bear the costs incurred in doing so.
However, Article 10.2 LPH (old version) also stated that this obligation should only apply if the cost of the measure did not exceed the amount of twelve regular monthly contributions to the general community expenses. This was intended to protect the community from excessive financial burdens. In the previous version of the law, which was in force until 2 August 2011, this limit was still three regular monthly contributions and was then increased to twelve monthly contributions, which meant that, despite the retention of a restriction, a considerable burden could still arise.
At the same time as the increase described above, an exception was therefore introduced for individual members of the owners’ association who only had a lower income.
If an owner lived in a family unit with an annual income of less than 2.5 times the Indicador Público de Renta de Efectos Múltiples (IPREM) – a kind of means test – the community’s obligation to implement the measure with the obligation to bear the costs or the right of the beneficiary of this measure should not apply.
However, this exception was also subject to a restriction. It did not apply if the family unit was receiving subsidies or other public assistance and the contribution to the construction measures attributable to the owner concerned did not exceed 33% of their total annual income (including any subsidies or assistance received). In such a case, the right under Article 10.2 LPH (old version) and the associated obligation to bear the costs were reinstated. Even if it seemed more correct (and, in our opinion, such an interpretation would have been possible) to maintain the right contained in Article 10.2 LPH (old version) to exempt financially weaker owners from the contributions required for the implementation of the measure instead of completely waiving the obligation of the community or the beneficiary’s right to implement the measure, the prevailing opinion was in accordance with the wording of the law, that if even one owner fell below the income threshold described and there were no special subsidies, Article 10.2 LPH (old version) was not applicable as a whole, as a result of which the right to have the (specific) architectural barriers removed at the expense of the community was lost by the owner concerned.
Negatively formulated, it could be said that a disabled owner or an owner who was legally equivalent to a disabled owner on the basis of his age only had a direct right under Article 10.2 LPH (old version) to have architectural barriers removed at the expense of the community as long as no member of the community of owners was below 2.5 times the low-income threshold of the ‘IPREM’.
If all owners had a higher income, this right remained in force if the cost of the measure did not exceed the amount of twelve ordinary monthly contributions to the community expenses. In the case of more expensive measures, a decision by the owners’ meeting was required (without the owner being entitled to this in every case) in order for the costs associated with the measure to be distributed among all owners. However, if such a decision was made, all owners, including those who were financially weaker, had to contribute. In any case, however, it was necessary for there to be a beneficiary within the meaning of the law, as it was always assumed that the measure was intended to accommodate a specific disability.
Due to the specific characteristics (facilities) that applied to the removal of architectural barriers, disagreements could arise among the owners as to the nature of the construction measure and whether it should actually be classified as necessary or whether it was an unnecessary improvement. Those who wanted the measure would have argued that it was subject to the special, because simplified, requirements of the aforementioned provision. Opponents would naturally have taken the view that the general rules were applicable.
The legislator had foreseen the possibility of such differences of opinion. In such cases, Article 10.4 LPH (old version) stipulated that the owners’ meeting should decide on the nature of individual measures in order to resolve the controversies described above. Beyond the cases covered by Article 10 LPH (old version), the owners’ meeting could vote on all matters concerning the community, including the nature of a construction measure, in accordance with Article 14.e.) LPH (old version). Owners who did not agree with the classification made by the meeting could, of course, also challenge such a decision in accordance with Article 18 LPH.
Article 10.5 LPH (old version) stipulated that the special property would be liable for the payment obligations arising from Article 10 LPH (old version) in the same way as provided for general expenses in Article 9 LPH.
According to Article 11.1 LPH (old version), the individual owner was not entitled to new facilities, services or improvements if these were not necessary for the proper maintenance, habitability, safety or accessibility of the property. At first glance, this was, in the broadest sense, a negative formulation of what was already contained in Articles 10.1 and 10.2 LPH (old version). However, unlike Articles 10.1 and 10.2 LPH (old version), Article 11.1 LPH (old version) did not refer to repairs, maintenance and conservation measures, but solely to innovations and improvements. The reverse conclusion could be drawn from Article 11.1 LPH (old version) that the owners could indeed demand innovations and improvements if these were necessary, for example, for accessibility or the removal of architectural barriers. However, this interpretation should only apply to cases where the appropriate maintenance, habitability or safety were affected. In this regard, it must be recalled what has already been stated in the previous section on general construction measures: The necessity under Article 11.1 LPH (old version) was derived from the characteristics of the property. In the case of accessibility, however, the necessity was not based abstractly on the property, but on the specific needs of the owners or residents. The fact that Article 11.1 LPH (old version) referred to accessibility was therefore classified as an unfortunate mistake on the part of the legislator, who may have been misled into making an inappropriate repetition here in view of the wording of Article 10.1 LPH (old version). On the other hand, an unrestricted obligation to implement measures to achieve accessibility would have rendered Article 10.2 LPH (old version) absurd, according to which the costs of the measure could not exceed a certain amount (twelve ordinary contributions to the community expenses) in order for the community to be obliged to implement it. But what then remained of Article 11 LPH (old version) with regard to the removal of architectural barriers? Well, if a corresponding resolution was passed with the legally required majority to implement necessary measures to ensure accessibility, all owners were obliged to pay their share of the costs, regardless of the amount. However, if the measures were not necessary, a distinction had to be made as to whether the costs per owner exceeded three ordinary contributions to the community expenses or not. If the unnecessary measures exceeded this limit, the dissidents were exempted from their obligation to contribute. (deviating from Articles 10.2 and 11.2 LPH, old version) stipulated that the community would be obliged to pay the costs of construction work to ensure accessibility even if these exceeded the amount of twelve regular monthly contributions to the community expenses, as long as these were based on a valid resolution.
Based on 17.1.3 LPH (old version), the carrying out of construction work or the creation of new community facilities that involved the removal of architectural barriers that impeded access or mobility for disabled persons required the consent of the majority of all owners, who in turn had to hold the majority of the participation quotas. This was the case even if this resulted in a change to the title of incorporation or the articles of association. Problems arose in practical application due to the fact that Article 17.1.3 LPH (old version) concerned the removal of architectural barriers, but contained a reference stating that this provision applied without restriction to Articles 10 and 11 LPH (old version).
As we have already explained in the previous section with regard to the general innovations and improvements, a historical analysis of the Spanish Condominium Act showed that the majority required in Article 11.2 LPH (old version) was that specified in Article 17.4 LPH (old version). However, this meant that, on the one hand, the majority required to remove architectural barriers was that specified in Article 11.2 LPH (old version) (which is based on Article 17.4 LPH (old version), i.e. in the first convocation, a majority of all votes and quotas and, in the second convocation, a simple majority of the votes and quotas present) and, on the other hand, that of Article 17.1.3 LPH (old version) (simple majority of all votes and quotas, with the fiction of Article 17.1.4 LPH, old version, according to which the votes and quotas of those absent are deemed to be in favour of the provisional resolution adopted by those present, unless a contrary vote is cast with the secretary of the community within the statutory 30-day period) Which one applied and when? From a systematic review taking into account the development of the LPH, it could be deduced that the majority under Article 17.1.3 LPH was required if the measure aimed at removing architectural barriers affected the declaration of division or the community statutes. Otherwise, the majority required by Article 17.4 LPH (old version) had to be applied. It would not have made sense to always require the more demanding and therefore more difficult to achieve majority under Article 17.1.3 LPH (old version) for initiatives aimed at achieving accessibility, while the other measures contained in Article 11 LPH (old version) , which could be demanded from the owners, were privileged by the easier-to-achieve majority of Article 17.4 LPH (old version). It could not have been the intention of the legislature to make it more difficult to improve access to properties for disabled persons by creating the special majority of Article 17.1.3 LPH (old version).
The above explanations also facilitate understanding of Article 17.1.2 LPH (old version). According to this, the installation or introduction of a lift service required a 3/5 majority of all votes and quotas (with the fiction of Article 17.1.4 LPH, old version, if the absent members did not cast their votes within 30 days) if the declaration of division or the community statutes were affected. Since Article 17.1.3 and 17.4 in conjunction with Article 11 LPH (old version) provided for easier majorities to be achieved when it came to removing architectural barriers, it could be assumed (since the legislature had created the privilege in question for this purpose) that in the case of disabled owners or owners over the age of 70, the majority required by Article 17.1.3 LPH (old version) would apply if (as was regularly the case) the introduction of a lift service affected the declaration of division or the community statutes, whereas Article 17.4 LPH (old version) would have been applicable (in conjunction with Article 11 LPH (old version)) if this innovation did not affect either the declaration of division or the community statutes (which was actually impossible). In other words, the majority of Article 17.1.2 LPH (old version) on the installation of a lift only applied if no disabled owner or relative lived in the property.
The reform that came into force on 28 June 2013 now expressly regulates this circumstance in Article 17.2 LPH, as amended. There is therefore no longer any doubt. At the present time, the installation of a lift service always requires a majority of all votes and quotas, unless there is already an obligation to install one.
Even if the wording of Articles 11.2 and 17.1.3 LPH (old version) allowed a different conclusion, these provisions could not be invoked when it came to the abstract removal of architectural barriers (detached from the existence of actual beneficiaries). Rather, the application of these provisions required the existence of a disabled person or a person with equivalent rights. As already explained in the description of the other majorities, Article 17.4 LPH (old version) dealt with the requirements for the remaining measures subject to general majorities. If no special majorities were applicable to the subject of the vote, the majority of votes and quotas of all owners was required in the first convocation and the majority of votes and quotas of the owners present in the second convocation.
