In owners’ associations and urban developments, a distinction must be made between at least three, and in some cases even four, levels with regard to the regulations applicable to construction work contained in the Spanish Condominium Act. Depending on who initiates the construction work or who is responsible for it (owner, community or public administration), the type of elements on which it is to be carried out (individual property or common property), the category into which it falls (innovations, maintenance measures, repairs) and the purpose it serves (creation of necessary or non-essential new services and facilities, removal of architectural barriers, etc.), different requirements must be set and conditions observed. The following classification is therefore based on these distinctions.

Carried out by the owner

Every owner is fundamentally entitled to carry out structural alterations within their separately owned property in accordance with their own wishes. Among other things, they may modify architectural elements, installations and fixtures, provided that they do not alter the safety of the property, its general structural elements, its layout or its external appearance, and do not impair the rights of other owners. This means that they may remove ordinary partition walls and erect new walls, thereby changing the number of rooms and the internal layout of an individual element of their separately owned property. They are also permitted to make changes to pipes and conduits that serve only their separately owned property and run inside their property. However, this right does not cover major work on load-bearing walls or supporting columns, even if these are located inside the separately owned property. Firstly, such alterations affect the safety of the building, which is why they are prohibited by Article 7 LPH. Furthermore, these elements are also common property, which is why alterations may only be made with the consent of the community for these reasons alone. However, if the separately owned property is, for example, a detached single-family house in an urbanisation, the load-bearing elements of the house are also classified as separately owned property. In this case, the work also has no impact on the safety of the urbanisation as such, as there is no connected building (divided into elements of separate ownership) that could be affected or damaged by the work. The owners are therefore permitted to make much more extensive changes here. At most, modifying the external condition could lead to an interference with the appearance and thus to a violation of the limits set by Article 7 LPH. In such a constellation, it will depend on whether there is a uniform appearance that could be disturbed or not.

The right to modify the interior of the separately owned property to a large extent, as derived from Article 7.1 LPH, is closely related to the exclusive right to separately owned property described in Article 3 LPH.

Before implementing the construction measures, the owner must simply inform the president of the community of his plans. This gives the community the opportunity to find out about the measures in good time and, in the event of doubtful changes, to discuss them with the owner. This limits the damage caused to both the owner and the community by unauthorised measures that require approval (which may later have to be removed or cause irreparable damage). Regardless of the notification to the president, a building permit must also be obtained. Spanish law distinguishes between the licencia de obra mayor (permit for major construction work) and the licencia de obra menor (permit for minor construction work).

Division, addition and separation of special property

One of the most drastic construction measures is the division, addition and separation of elements of special property. When assessing these, however, it is important to distinguish between actual and legal changes. If, for example, an apartment or business premises is divided into several physically separate units by erecting partition walls, this does not require the approval of the community as long as it does not affect the common property or change the quotas (individualisation or division of the quota of the original special property element among those resulting from it). If, on the other hand, each of these parts is to become not only a physical but also a legally independent element, or if the division affects the common property (e.g. the façade), a corresponding individual share must be allocated. The individual share, i.e. the fixed proportion of the common property, is a prerequisite for the creation of an independent separately owned element. If, for example, a business premises is to be divided into two legally completely independent units, each part must be allocated its own share. This requires the approval of a double three-fifths majority of votes and shares of all owners. The case is similar with the actual connection of residential or business premises. Here, too, the factual connection does not create a legally uniform element. Work aimed at creating a connection (breaking through walls) is, according to prevailing opinion, to be assessed in accordance with Article 7.1 LPH and not in accordance with Article 10.3.b.) LPH (otherwise requiring a resolution by three-fifths of the owners and quotas). Although the partition walls between the separately owned elements must generally be classified as common property, their partial removal does not require special permission from the community if they are not load-bearing walls (in which case the safety of the property could be affected), building elements are not altered (the partition wall is broken through, but retains its function for all other owners), the external appearance is not changed (changes to external walls or the façade are to be assessed differently) and the rights of third parties are not infringed. However, if a uniform, legally independent element is to be created from several independent elements of separate ownership in such a way that they are combined, a new resolution by three-fifths of the votes and quotas of all owners would be required.

When Article 10.3.b.) LPH refers to the division, connection and separation of special property, this does not refer to the factual change, even if the wording suggests this, but to the legal change. A purely factual change is possible without a corresponding resolution of the owners’ meeting if no common property is affected.

Division

A separately owned element may be divided into several independent separately owned elements in accordance with Article 10.3.b.) LPH (in this case, the original element is dissolved in favour of several new independent elements). For example, a 100 square metre flat is divided into two 50 square metre flats. In this case, the original separately owned property is deleted from the land register in favour of the new ones created from it. A new land register page is created for each of the new separately owned properties.

Furthermore, part of a separately owned property element can be split off. By reducing the size of the original separately owned property element, a new and independent element is created (the original element continues to exist, but its size or area is reduced in favour of the creation of a new element).

Addition

It is also possible to add one or more separately owned elements or a split-off part thereof to another separately owned element (i.e. individual elements or parts thereof are absorbed into another). For example, a 40 square metre flat is added to a 250 square metre flat in such a way that the smaller unit ceases to exist independently, or a 20 square metre room is split off from a 120 square metre commercial space and added to another independent commercial space. The enlarged separately owned property element continues to exist with its now expanded area. It retains its identification in the land register – only the description needs to be adjusted. It should be noted that Article 48 of the Reglamento Hipotecario stipulates that the property to be enlarged must have at least five times the area of the element or part to be added. The addition of a larger element to a smaller one is therefore ruled out from the outset. In addition to the changes just described, the RH also provides for the possibility of combining real estate (agrupación). In this context, combination means that several elements are merged into a completely new one, for which a new land register page is created. Even though there is no reference to this possibility in the wording of Article 10.3.b.) LPH, it can be assumed that all options provided for by the RH are covered by Article 10.3.b.) LPH. justify;”>As these cases involve a legal change, in addition to the consent of the owners concerned, the approval of the owners’ meeting is required, which is responsible for determining the new participation quota(s) for the altered apartments and business premises in accordance with Article 5, without the quotas of the remaining, unaffected elements of special ownership being modified. This consent must be given in accordance with Article 10.3.b.) LPH by means of a resolution approved by three-fifths of the votes and shares of all owners. In this respect, the exception expressly provided for in Article 17.6 LPH applies, so that the unanimity requirement does not apply because, although the required resolution affects the declaration of division (or the articles of association) of the owners’ association, the law provides for a different majority.

Law 8/2013 of 26 June on urban redevelopment or renewal and renovation measures, which came into force on 28 June 2013, not only reduced the majority requirements for the division, addition and separation of special property, but also expressly specified further construction measures and placed them on an equal footing with regard to majority requirements. In this context, with regard to special property, particular mention should be made of the closure of terraces, the addition of storeys to the building and any other alteration to the building structure or fabric. Even though the closure of terraces is certainly the most common case, individual owners (usually the property developer) may also decide to add additional storeys, as they have often reserved the right to do so in the title deed. In both cases, all that is now required is a resolution supported by three-fifths of all votes and quotas of the community.

Building permit

In addition to a resolution approved by three-fifths of all votes and quotas of the community, Article 10.3.b.) LPH also requires a building permit to be obtained from the competent authority. This requirement already existed before the revision of the Spanish Condominium Law by Law 8/2013 of 26 June, as the authority to grant building permits and supervise their execution lies with the municipality. However, the explicit reference to the need for such a permit has only now been introduced into the Spanish Condominium Law.

Is the fulfilment of the requirements of Article 17.6 Ley de Suelo a genuine condition?

On reading Article 10.3.b.) LPH, one could come to the conclusion that these relaxed majority requirements (compared to the former requirement of unanimity, which otherwise regularly applies to amendments to the declaration of division) would only apply in very specific cases, namely when the conditions set out in Article 17.6 Ley de Suelo are met. In fact, the article in question refers to so-called complejos inmobiliarios, i.e. real estate complexes. One could therefore argue that the provision in Article 10.3.b.) LPH refers only to urban developments. However, this is contradicted by the legal definition of complejo inmobiliario inserted in Article 17.6 a.E. Ley de Suelo. Finally, this term is understood to mean any real estate complex in which elements that are exclusively owned coexist with other elements that are jointly owned and serve the former, if the ownership of these joint elements is expressed as a share distributed among the owners of the exclusively owned elements. In other words, if there are elements of separate ownership and common elements serving them, in which the owners have a share, there is a real estate complex within the meaning of Article 17.6 of the Ley de Suelo. Based solely on the wording, Article 10.3.b.) LPH would therefore apply to all owners’ associations. However, a glance at Article 2 a.) and c.) LPH is sufficient to establish that the Spanish Condominium Act does indeed distinguish between simple owners’ associations and real estate complexes. Although the Ley de Propiedad Horizontal is intended to apply to both types of communities, the legislator also points out that these are different constellations. Due to the contradiction described above, it could therefore be argued that Article 10.3.b.) LPH only applies to real estate complexes within the meaning of Article 17.6 Ley de Suelo and Article 2 LPH. In that case, the relaxation of the previously applicable unanimity rule in favour of the new double three-fifths majority would only apply to urbanisations in accordance with Article 2 LPH. The courts will have to dispel the entirely justified doubts and indicate which view should be given priority.

Where Article 10.3.b.) LPH applies, the construction of new floors and any other alteration to the building structure or fabric, which, as we have seen, includes the closure of terraces and the alteration of the (building) envelope to improve energy efficiency, as well as changes to items in common ownership, only a three-fifths majority of the votes and quotas of all owners is required (unless other, more specific provisions take precedence).

Implementation by the community

The community is entitled to carry out all repairs on the separately owned property that are necessary for the operation of the property. In addition, the owner must also tolerate easements if these are essential for the creation of community facilities of general interest that have been decided upon in accordance with Article 17 LPH. To this end, Article 9.1.c.) LPH stipulates that it is the owner’s duty to allow such work to be carried out on their separately owned property. Article 9.1.d.) LPH further stipulates that the owner must grant access to their separately owned property in order to enable the work to be carried out in the first place.

Construction work on common property

Carried out by the owner

In general, owners are not permitted to carry out construction work on common property (exceptions to this principle are outlined below). Even in the event that urgent repair work is necessary, the law only requires the owner to inform the president. In principle, therefore, the owner should not even intervene himself, but should confine himself to informing the representative of the community. The latter will normally have contacts with suitable tradesmen and specialised companies, either himself or with the help of the property manager, who can carry out the necessary repairs professionally and at market prices within the shortest possible time. Despite the provisions of Article 7.1.2 LPH described above, this does not necessarily mean that the owner is not allowed, in exceptional cases, to arrange urgent repairs himself. For example, it may happen that no responsible person (president or administrator) can be reached and the urgency is so high that any delay would unnecessarily increase the damage or risk. In such cases, the owner should not only be entitled to commission the repair work, but also to be reimbursed for any costs incurred by him. Ultimately, however, such measures have very little to do with all other conceivable work on common property, which is prohibited to owners as described above.

In principle, only the community is entitled to initiate construction work on common property. In the case of urgent repairs that cannot be postponed or where delay would result in a significant increase in damage, the law stipulates that the administrator is permitted to take the necessary measures. However, he must immediately inform the president of this. Similarly, under special circumstances – as we have seen above – an individual owner may also have the necessary repair work carried out immediately to prevent damage if the president (and, if applicable, the administrator) cannot be reached and waiting does not seem advisable due to the overall circumstances. However, both cases are exceptions. Construction work on common property therefore generally requires a resolution by the owners’ meeting. Depending on the type, scope and purpose of the specific construction work, this resolution requires different majorities.

Unfortunately, despite all the reforms that have been made, Spanish residential property law is not particularly clear when it comes to the various construction measures and the requirements that apply to them. The abundance of vague legal terms and the seemingly contradictory paragraphs of Articles 10 and 17 LPH, whose respective meanings can only be understood through systematic classification, lead to partially contradictory interpretations in case law and literature and, as a result, to correspondingly divergent assessments and judgements.

In any case, it can be said that the legal classification of Bass measures is extremely complex and depends on the individual case. In order to facilitate assessment as far as possible, a general graphical overview has been created to convey the essential structures. In addition, the structure of the following explanations and the design of the explanatory diagram have been coordinated for this purpose. By reading them simultaneously, each of these contents should benefit from the strengths of the other presentation format. We hope that the diagram will help to maintain an overview and that the following text will contribute to a more in-depth understanding of the characteristics and prerequisites of the respective measures.

Both the structure of the diagram and the explanations that follow have been based on the classification of terms used in the Spanish Condominium Act, which distinguishes between repairs (ordinary, extraordinary and urgent), maintenance and conservation measures, and renovations.

Repair measures

Repair work is defined as all measures aimed at restoring the property to its original condition after damage has occurred. A further distinction is made between ordinary repairs, which are necessary due to normal wear and tear or ageing and the associated damage, and extraordinary repairs, which are necessary after unforeseen, i.e. accidental, damage (e.g. after fires, lightning strikes or flooding). Both cases can be classified under the provisions of Article 10.1.a.) LPH, according to which the community is obliged to take the necessary measures to maintain and preserve the property. Article 14.c.) LPH stipulates that the owners’ meeting must decide on the allocation of funds and the execution of all repair work on the property, regardless of whether they are of an ordinary or extraordinary nature; however, this does not mean that the community must decide whether necessary repair work is to be carried out – i.e. that a certain majority must first be reached for this – but rather that it must decide on the provision of funds and the manner of implementation. While the funds to be raised for ordinary repairs are, due to their predictability, reflected in the relevant budget at an ordinary meeting, extraordinary repairs are regularly financed by resolution at extraordinary meetings and by way of special assessments or provisionally charged to the reserve fund (see Article 9.1.f.) LPH).

In the case of extraordinary repairs, a further distinction must be made as to whether the necessary measure is urgent or not. If the measure is urgent and cannot be postponed without risk of significant damage, the administrator may, in accordance with Article 20.c.) LPH, take the necessary measures on his own authority without the owners’ meeting having to vote in advance on the means and manner of execution. In such a case, however, the administrator is obliged to inform the president or, if necessary, the owners immediately of the measures he has taken. The funds necessary to carry out the urgent work must be financed from the reserve fund, which is why the existence of such a reserve is indispensable, not only because of legal requirements but also because of actual needs.

Maintenance and conservation measures

In accordance with Article 10.1.a.) LPH, the owners’ association is also obliged to maintain the property and to arrange for all necessary conservation measures. Unlike repair work, this does not involve the removal of damage – i.e. restoration to the original condition – but rather counteracting normal wear and tear. However, this does not extend to all conceivable common elements, but only to those that affect the basic safety requirements (requisitos básicos de seguridad) of the building, or that affect habitability (habitabilidad), general accessibility (accesibilidad universal) or the condition of the ornamentation (condiciones de ornato). In addition, since 28 June 2013, the law has included all elements for which the public administration has imposed a special legal obligation to maintain (cualesquiera otras derivadas de la imposición, por parte de la Administración, del deber legal de conservación). Although such an obligation may have existed previously, it is now expressly referred to in the Spanish Condominium Act.

Remarkably, the new version of Article 10.1 LPH, which came into force on 28 June 2013, removed the original reference to the obligation to maintain and preserve the structural characteristics (condiciones estructurales) of the building and its waterproofing (estanqueidad), which had been expressly stated until then, was removed. However, this should not lead to the assumption that the community’s maintenance obligations have been reduced. Rather, it can be assumed that these aspects now fall under the basic safety requirements. In order to facilitate understanding and handling of these requirements, the meaning and scope of both terms (condiciones estructurales and estanqueidad) will therefore also be explained in more detail below.

A clear and conclusive classification of which works fall under Article 10.1.a.) LPH (apart from the conservation obligations that are necessarily specific to each individual case and expressly imposed by the administration) is that the terms just mentioned are of an indefinite nature and that, depending on the nature of the property in question, the same measures may be necessary in one case and unnecessary in another.

The following explanations are therefore intended only as general guidelines.

The concept of structural characteristics could include all parameters relating to the structural characteristics of the property (layout, number of floors, roofing, etc.). With regard to the relevant building regulations, it can also be said that this concept (condiciones estructurales) is closely related to the structural safety requirements (requisitos de seguridad estructural) described in Article 3 of the Ley de Ordenación de la Edificación. According to this, it must be ensured that no damage occurs to the building or its components that originates in or affects the foundations, supports, beams, trusses, load-bearing walls and other structural elements and directly affects the mechanical resistance and stability of the building.

By the concept of protection against moisture (estanqueidad), the legislator meant the obligation, among other things for reasons of general health prevention, to ensure that no moisture damage occurs in any of the separate areas due to seepage.

The generic term habitability (habitabilidad) refers to the requirements for suitability for residential purposes in accordance with legal requirements. These include, among other things, the supply of drinking water, a functioning sewage system and, in general, compliance with all relevant hygiene regulations. Against this background, reference should also be made to the aforementioned Article 3 of the LOE, which also includes noise protection and energy efficiency among the requirements for habitability.

For the interpretation of the term general accessibility (accesibilidad universal), reference can be made to the legal definition already contained in Article 2.c.) of the now repealed Law 51/2003 of 2 December on equal opportunities, anti-discrimination and general accessibility for persons with disabilities. This stated:

Universal accessibility: The condition that environments, processes, goods, products and services, as well as objects or tools and devices, must fulfil in order to be understood, used and accessed by all persons safely, comfortably and as independently and naturally as possible. It presupposes the concept of ‘design for all’, without this meaning that reasonable adaptations should not be made where necessary. justify;”>Even though Royal Decree 1/2013 of 29 November, which repealed the old law and brought into force the new General Law on the Rights of Persons with Disabilities and their Social Integration, came into force on 4 December 2013, this legal definition has been retained almost verbatim. The meaning and scope are therefore identical.

In addition to the obligation to maintain accessibility in accordance with Article 10.1.a.) LPH, Article 10.1.b.) LPH contains even more far-reaching requirements to ensure that communal elements are designed to be accessible to persons with disabilities. Beyond maintenance, Article 10.1.b.) LPH requires that the necessary measures be taken to achieve reasonable accommodation to the general requirements of accessibility. If disabled persons or persons over the age of 70 live in the community, this obligation is extended to include case-by-case accessibility, as we will see later.

The safety requirements are to be understood as meaning that personal injury and damage to property resulting from inadequate maintenance and conservation of the property must be prevented. This includes, for example, the fire hazard resulting from outdated electrical installations, the risk of pipe bursts and flooding resulting from outdated water pipes, or the risks resulting from roof tiles falling off due to age. In this case, the provisions of Article 3 of the Ley de Ordenación de la Edificación must also be taken into account.

Despite the references made here to the Ley de Ordenación de la Edificación, it should be emphasised that the maintenance and conservation measures referred to in Article 10.1.a.) LPH relate solely to maintaining or restoring the property to its original condition in accordance with its intended use. In answering the question of the extent of the obligation to carry out the necessary maintenance and conservation measures under Article 10.1.a.) LPH, this law (LOE) therefore plays only a limited role. Any obligation to modernise the property arises from other provisions. Nevertheless, the meaning of the terms used should be explained at this point, as they appear here for the first time in the order in which we have chosen to present all the construction measures. We will therefore refer to the explanations given here in the following.

Similar to repair work, maintenance or conservation measures may also be urgent and entitle the administrator to initiate them without a resolution by the meeting. In any case, Article 20.c.) LPH refers to other measures (medidas) in addition to urgent repairs in this context.

Apart from the exceptional case described above, a resolution of the owners’ meeting must always be obtained to initiate maintenance or conservation measures, even if the wording of Article 10.1 LPH incorrectly suggests a certain degree of automaticity. However, based on Article 10.1 LPH, the meeting is obliged to pass such a resolution. Each owner is therefore entitled to demand the execution of the resolution or a resolution to that effect. However, it is up to the meeting to decide whether the specific measure is actually necessary, as there may be different opinions on this. If the meeting rejects a resolution to this effect, some authors see the possibility of challenging this negative resolution under Article 18 LPH on the grounds that it violates the law, but a negative resolution cannot be challenged on the basis of Article 18 LPH, as we will explain elsewhere. Rather, an action based on a violation of Article 10.1 LPH would be relevant. If the resolution is passed, all owners must participate to the extent of their share.

Articles 10.1.a.) and b.) LPH also provide for the right of owners to demand that the community implement construction measures so that the common elements adequately meet the requirements of general accessibility. If disabled persons or persons over the age of 70 live or work in the separately owned elements, each owner may also demand that the common elements be adapted to their needs so that the specific accessibility required for them can be achieved. In addition, mechanical or electronic installations must also be carried out to enable them to find their way around and connect to the outside world. Despite this entitlement, as we will explain later in a section dedicated to these issues, a distinction must be made on a case-by-case basis. This is because, although there may be a right to such measures, a further distinction must be made to determine whether the community itself is obliged to implement them or whether the persons concerned merely have the right to implement a measure (in whole or in part) at their own expense.

Until the reform that came into force on 28 June 2013, these adaptation measures to achieve case- or person-specific accessibility could only be requested by a property owner if their costs did not exceed twelve ordinary monthly contributions to the community expenses. If there were owners with very low incomes in the community, this right did not apply in order to protect low-income owners from having to pay higher contributions. However, this low-income clause has now been removed from the law altogether. In addition, the costs may now exceed the aforementioned amount of twelve regular contributions to the community expenses without losing their mandatory nature. In such a case, the applicant must simply bear the excess costs themselves. However, as indicated, a more detailed insight into the special requirements will be provided elsewhere, in a section dedicated to accessibility.

If the owners disagree on the classification of a measure, the owners’ meeting shall decide on its nature in accordance with Article 17.10 LPH. If adopted, the decision of the meeting may be challenged in court by the opponents by way of Article 18 LPH. With regard to the costs of the measures contained in Article 10.1.a.) – d.) LPH, all owners shall contribute to these in accordance with Article 10.2 LPH.

Repair, maintenance or conservation measures must be distinguished from work aimed at introducing innovations or improvements. While the former are aimed at restoring or maintaining the property in its original condition, the latter lead to a quantitative or qualitative improvement, e.g. by increasing usability or convenience, adding new communal elements to the existing ones, or simply by creating a more dignified appearance, thereby increasing the overall value of the property. In contrast to Article 10.1 LPH, Article 17.4 LPH stipulates that no owner may demand new facilities, services or improvements if these are not necessary for the proper maintenance, habitability, safety or accessibility of the property, in accordance with its nature and characteristics. Conversely, it can therefore be said that this provision gives owners the right to demand the privileged construction measures that are expressly exempt from the restriction if they are necessary in accordance with the nature and characteristics of the property. With regard to the meaning of the terms habitability, safety and accessibility, reference can be made to the above explanations. Unlike in the case of Article 10.1.a.) LPH, however, the community is not obliged to take independent action to carry out the privileged measures within the meaning of Article 17.4 LPH. The introduction of innovations and improvements in the areas specified only obliges the community if they are necessary in accordance with the nature and characteristics of the property and have been requested by an owner. To this end, the relevant resolution would then have to be passed at the owners’ meeting.

Privileged innovations and improvements

The classification of innovations and improvements required according to the nature and characteristics of the property poses particular difficulties.

Obviously, each individual case must be considered separately, as each property is different in nature and has different characteristics.

In an older version of the LPH, which was valid until 27 April 1999, reference was made to the rank (rango) of the property instead of its nature and characteristics. On this basis, the owners were taken as the reference point and their economic strength was used to assess which facilities were to be considered appropriate and therefore necessary. Based on the new wording, however, the general condition, the facilities, the street or the district in which the property is located, etc. must now be taken into account instead. And not at the time the property was built, but in the present. The basis for assessment has therefore shifted from person-related to property-related criteria and is now based on what facilities or innovations are customary, taking into account technical progress in comparable properties (and only in relation to maintenance, habitability, safety and accessibility). Even if the financial situation of the owners becomes irrelevant as a result of objectification, it is often closely related to the characteristics of the property, which is why it cannot be ruled out that recourse to resident-related arguments could still find favour today and influence the decisions of individual courts.

If the introduction of an innovation or the implementation of an improvement is necessary in relation to the nature and characteristics of the property for its maintenance, habitability, safety or accessibility, it must be carried out at the request of an owner. Unlike in the cases covered by Article 10.1.a.), the obligation to carry out such work does not arise automatically, but only when it is actually requested. However, in order for the work to be carried out, a corresponding resolution must be passed by the owners’ meeting.

Once this has been decided, all owners must contribute to the costs. Although this is not expressly stipulated, it can be inferred from the reverse conclusion of Article 17.4 LPH. If all owners have to contribute to the costs of certain non-essential renovations or improvements, this can only mean that the same applies to essential measures.

Non-essential renovations and improvements

In order to protect individual owners from having to bear the costs of completely unnecessary renovations and improvements (which may nevertheless find support within the community) and on the other hand to enable older properties to participate in emerging technical developments even against the will of certain owners, the legislature resolved this difficult contradiction by drawing an economic line to create a mediating regulation.

Up to a certain cost threshold, unnecessary innovations and improvements should be borne by all owners, provided that the necessary majorities are achieved, while if this cost limit is exceeded, those who oppose them (the legislator refers to them as disidentes, literally translated as dissidents – we will explain this term below) would be exempt from the obligation to bear the costs. The legislator has set this limit for the payment obligation for unnecessary measures at three regular monthly contributions to the community expenses. The calculation must be based on the individual owner, i.e. on the amount of their specific contributions. If, for whatever reason, a certain amount is paid in addition to the regular contributions, e.g. due to a special levy, this additional payment is not to be taken into account for the calculation.

Since the community is not obliged to take such measures automatically or at the request of an owner in the case of unnecessary renovations and improvements, and since such measures are even prohibited if there is no corresponding resolution by the owners’ meeting, two aspects must be taken into account in more detail. On the one hand, the majority required for the resolution must be achieved. On the other hand, the limit of three contributions to ordinary community expenses must not be exceeded if all owners are to be equally obliged to contribute to the costs (otherwise the dissidents will be exempt from the obligation to bear the costs).

With regard to the first question, i.e. the required majority, the latest reform of the Spanish Condominium Act (which came into force on 28 June 2013) has provided considerable clarity in the application of the law, but at the same time has created a more difficult hurdle to overcome.

While originally no explicit majority was specified for the adoption of resolutions on the implementation of non-essential innovations and improvements – for which, however, in our opinion, a simple majority was sufficient, as we will explain below – the legislator has now expressly stipulated in the revised Article 17.4.2 LPH that a three-fifths majority must be achieved. This means that when assessing the legality of such a measure and the majority to be achieved, a distinction must now be made between resolutions passed before and after 28 June 2013.

Resolutions regarding non-essential renovations and improvements prior to 28 June 2013 (within the meaning of Article 11.1 and 2 LPH, old version)

Until the latest reform of the Spanish Condominium Act came into force on 28 June 2013, there was discussion about the majorities required to decide on non-essential innovations and improvements. When the old, now obsolete Article 11.2 LPH referred to validly adopted resolutions (cuando se adopten válidamente acuerdos), it was argued that this implicitly referred to the entire Article 17 LPH at that time. At that time, as is still essentially the case today, Article 17 LPH specified the majorities required for the respective resolutions. However, in the absence of a clear majority, there was discussion as to which specific majority the provision of the former Article 11.2 LPH should refer to. This caused confusion among owners and property managers.

The solution was found by looking at the history of Article 11.2 LPH and analysing the then Article 17 LPH. A look at the history of the Ley de Propiedad Horizontal shows us that in the original version, which came into force on 12 August 1960, according to the then Article 16 LPH (from which the legal majorities were derived at that time), a distinction was made between only two types of resolutions. Those that required unanimity and those that could already be passed by a simple majority. The reference to the resolution passed in an appropriate manner and the exemption of dissenting members from their obligation to pay contributions, which was contained in Article 11.2 LPH until 27 June 2013, already existed in the original version of the law but was initially found in Article 10.2 LPH (old version).

Obviously, this exemption could only apply to decisions for which a simple majority was sufficient, because there could be no dissidents in the case of a unanimous decision, and no other majorities existed. Over the years, the regulatory content of Article 16 was transferred to Article 17 with regard to resolutions, and further majorities were introduced in addition to simple majority and unanimity. The general requirement of unanimity was considered too rigid by the legislature, as useful measures often failed due to resistance from small minorities or even individual owners, which meant that many owners’ associations were effectively unable to act in numerous matters. The gradual introduction of various majority requirements and criteria was intended to remedy this situation. However, based on a historical analysis, it can be concluded that, despite the introduction of various majority requirements, Article 11.2 LPH (old version) could only refer to decisions requiring a simple majority. When the Ley de Propiedad Horizontal was created, there was ultimately (apart from unanimity, which is to be excluded in this context) no other than a simple majority, and a change to the majority requirement ex 11.2 LPH (old version) cannot be derived from any amendment to the law until 2013 for other reasons.

In addition to historical analysis, a look at the wording of Article 17 LPH as it stood until mid-2013 and the subjects of the resolutions described therein also supports this interpretation.

As described, the now obsolete Article 11.2 LPH could not be applied to those resolutions which required unanimity in accordance with the then Article 17.1 LPH. If unanimity had to be achieved, there could be no dissidents, which is why a unanimous resolution with dissenting votes was inconceivable. In this respect, this finding is a continuation of the historical interpretation already described above, which continues to apply. However, a look at the other majorities led to the same result. Incidentally, all majority resolutions described in the old Article 17.1 LPH were subject to the provision of the then Article 17.1.5 LPH, according to which all owners were obliged to comply with any of the resolutions described in the old Article 17.1 LPH (now 17.9 LPH). An exemption from the obligation to contribute, provided for in the former Article 11.2 LPH and dependent on the costs of the measure, was therefore ruled out. Otherwise, the provision of the old Article 11.2 LPH would have been in conflict with the aforementioned Article 17.1.5 LPH (old version). Moving on to examine the majority referred to in the next paragraph, we note that the resolutions standardised by Article 17.2 LPH (old version) clearly obliged only those owners who had expressly voted in favour of them to bear the costs. The provision in Article 11.2 LPH (old version) would also make no sense here, since Article 17.2 LPH (old version) exempted a much larger group of owners from their obligation to contribute, and not just the dissidents, regardless of the costs of the measure. The subjects of the resolutions dealt with in Article 17.3 LPH (old version) also contained special provisions regarding the obligation to bear costs, which deviated from Article 11.2 LPH (old version). In our opinion, Article 11.2 LPH (old version) could therefore only apply to those resolutions that required a simple majority under Article 17.4 LPH (old version).

In order to proceed with the application of Article 11.2 LPH (old version), the question raised above regarding the required majority had to be answered in such a way that the simple majority of Article 17.4 LPH (old version) was sufficient. If this majority was not achieved, the proposal was deemed rejected. The measure put to the vote was not implemented and, accordingly, no obligation to pay contributions was established or special levies imposed. However, if the required majority was achieved, it had to be clarified, as in the current text of the law, whether the individual share of the costs of the measures decided upon exceeded the amount of three ordinary contributions to the community expenses. If it did not exceed this amount, all owners were obliged to pay the costs. However, if the individual contribution obligation exceeded three monthly contributions to the community expenses, the dissidents were exempted from the obligation to bear the costs.

Decisions regarding non-essential renovations and improvements since 28 June 2013 (within the meaning of Article 17.4 LPH)

The reform of the Spanish Condominium Act that came into force on 28 June 2013 repealed the previously applicable Article 11 LPH and transferred the provision contained in its second paragraph regarding unnecessary renovations and improvements to the new version of Article 17.4 LPH. At the same time, however, the wording and the conditions contained therein were amended. Instead of not specifying the required majorities, as was previously the case, and allowing valid resolutions to implement renovations to suffice, it is now stated that the consent of three-fifths of all owners, who in turn hold three-fifths of the participation quotas, is required to carry out non-essential renovations and improvements. The opinion described in the previous section, which we hold and which was in line with the prevailing opinion at the time , according to which a simple majority was sufficient for the measures described, has therefore become obsolete in that resolutions adopted since 28 June 2013 which have as their object the implementation of unnecessary innovations and improvements now require a double three-fifths majority of all votes and quotas.

Although the explicit designation of a majority is to be welcomed in principle, it does facilitate the application of the law, it is doubtful whether the increase in the required majority from a simple majority to a three-fifths majority was appropriate.

In the past, it was already difficult to implement the wishes of individual owners to improve the property and introduce dispensable innovations if these involved more than insignificant costs (i.e. if the investment exceeded the amount of three ordinary contributions to the community expenses per owner, as each consenting owner was required to contribute to the costs, while those who voted against the measure benefited from the exemption from contributions triggered by it).

In the past, it was already difficult to implement the wishes of individual owners to improve the property and introduce dispensable innovations if they involved more than just insignificant costs (i.e. the investment exceeded the amount of three ordinary contributions to the community expenses per owner, as each approving owner was required to contribute to the costs, while those who voted against the measure benefited from the exemption from contributions triggered by this).

By increasing the requirement from a simple majority within the meeting to a three-fifths majority of the quotas and votes of all owners, a hurdle is created that will only have to be overcome in exceptional cases. It is to be expected that this change will also lead to an increase in lawsuits regarding the nature of a particular construction measure. Owners interested in implementing the measure will consider more carefully than before whether the desired measure is not, after all, a necessary construction measure within the meaning of Article 10.1 LPH and therefore even mandatory. This is particularly true since, according to Article 17.10 LPH, the owners’ meeting can vote on the classification of a particular measure.

As in the old version of the law, the new version also exempts dissenting owners from the obligation to contribute. This exemption applies even if the dissenting owner benefits from the innovation or improvement and cannot be denied this benefit due to the nature of the measure.

Since these improvements affect the common property and the innovations also constitute common property, it could be assumed that the operating costs arising from the creation or optimisation of common property would have to be borne by all owners, including the dissidents. However, Article 17.4.2 LPH expressly stipulates that their share does not change. In this context, ‘share’ can only be understood as the amount of the contributions to the common expenses, which is why this case constitutes a significant exception to Article 9.1.e.) LPH, which deals with the general obligation of all owners to bear the costs. For this reason, Article 9.2 LPH also refers to the special features resulting from Article 17.4 LPH.

However, if the dissenting owner is excluded from using the new facility due to its nature, he may, in accordance with Article 17.4.2 a.E. LPH, apply for access to it at a later date if he subsequently pays his updated (i.e. interest-bearing) contribution to the original installation and operating costs.

As already indicated, the provisions described above regarding innovations and improvements are generally applicable, with two exceptions:

Removal of architectural barriers

If resolutions have been passed with the relevant majorities on work to overcome architectural barriers or achieve accessibility, the community shall bear the full costs in accordance with Article 17.2 LPH. There is therefore no contribution threshold above which exemption from the obligation to bear the costs would apply. However, since the relevant provisions on accessibility are not only contained in several articles of the LPH, but since relevant provisions outside the Ley de Propiedad Horizontal must also be taken into account, more detailed explanations will be provided in a separate section devoted to accessibility.

Since Article 10.1 LPH (in accordance with Article 10.2 LPH) establishes a general obligation to bear the costs in the case of repair, maintenance and conservation measures (which may, among other things, be aimed at maintaining accessibility), Article 10.1.b.) LPH establishes a special obligation to carry out measures to remove architectural barriers under certain conditions, and Article 10 LPH and Article 17 LPH stipulate different consequences in this area depending on the majority ratios, the specific necessity of the measures and their costs, these types of measures will be dealt with separately elsewhere, as already explained.

The general comments made here are therefore to be understood as excluding measures relating to accessibility or the removal of architectural barriers.

Changes restricting use

If the intended innovations result in any part of the building becoming unusable for the use and enjoyment of an owner, in addition to the corresponding resolution based on the specific majority (depending on the nature of the measure) set out in Article 17 LPH, in any case the express consent of the affected owner (Article 17.4.3 LPH) is required.

The dissident A further distinction is made between measures that are not necessary in this sense, depending on whether the funds required for their implementation exceed the amount of three ordinary monthly contributions to the community expenses per owner. As explained in detail, this provision serves the purpose of exempting what the law refers to as dissidents from their general obligation to contribute to more expensive, unnecessary measures. On the one hand, owners who wish to carry out renovations or improvements are given the opportunity to do so if a (three-fifths) majority is in favour, while on the other hand, those who oppose costly and unnecessary measures are not obliged to contribute to the costs.

However, the question arises as to what kind of requirements must be met in order for an owner to be classified as a dissident and, as a result, be exempted from the obligation to contribute to the costs of unnecessary and more expensive measures.

There is no doubt that an owner who has voted in favour of a measure is not a dissident.

If an owner did not participate in the meeting and did not exercise his or her voting right, the classification becomes more difficult. Due to the recent reform of the Spanish Condominium Act, which came into force on 28 June 2013, neither relevant literature nor case law can be used to answer this question. Therefore, we can only refer to the discussion that existed before the reform, which will be presented here, adapted to the changes that have since occurred. To this end, we will first examine the legal situation prior to 28 June 2013, which, in conjunction with the current wording of the law, should provide a definitive answer to the question of the requirements for dissident status.

Obtaining dissident status and thus exemption from the obligation to pay contributions in the case of decisions concerning unnecessary innovations and improvements which exceed three months’ contributions to the ordinary community expenses and were taken before 28 June 2013.

Closely linked to the question of dissident status was the determination of the majority required for the resolution within the meaning of Article 11.2 LPH (old version). Depending on the majority required, there was and still is a different counting procedure in which the votes and quotas of those absent are either not taken into account, or in the course of which the absent members have the opportunity to cast their votes retrospectively within a period of 30 days from notification of the provisional resolution adopted by the members present (whereby failure to cast these retrospective votes leads to the fiction that the absent member would vote in favour of the provisional resolution). This difference understandably had a significant impact on the question of who should be classified as a dissident. As already explained above, according to prevailing opinion, a simple majority under Article 17.4 LPH (old version) was sufficient for the adoption of a resolution regarding non-essential improvements or innovations.

Some argued that the owners who opposed the resolution (since resolutions for which a simple majority of votes and quotas pursuant to Article 17.4 LPH (old version) were sufficient, and the fiction of Article 17.1.4 LPH (old version) did not apply to such majorities, which in turn meant that the absent owners did not have the 30-day period to cast their votes retrospectively) should have challenged the decision of the owners’ meeting in accordance with Article 18 LPH in order to be classified as dissidents.

Gómez Calle, on the other hand, took the view that, analogous to the possibility created by Article 17.1.4 LPH (old version), the absent owner should also be able to oppose the resolution of those present within 30 days in order to be considered a dissident within the meaning of Article 11.2 LPH (old version). Unlike in the cases covered by Article 17.1 LPH (old version), however, the notification of the absent owner should not be used to form majorities, but should merely serve the purpose of classifying the absent owner as a dissenting party. The argument was put forward that there was no reason to deprive absent owners of the opportunity to express their opposition without participating in the meeting for the sake of the practical application of Article 11.2 LPH (old version). This was followed by a reference to an essay by Fuentes Lojo, who argued in the reference cited there that the absent owners should be classified as dissidents in any case.

However, in our opinion, the opinion expressed by Gómez Calle was not appropriate. In view of the purpose pursued by the legislature, the 30-day period specified in Article 17.1.4 LPH (old version) should only apply in the cases specified in Article 17.1 LPH (old version). The purpose of this provision was ultimately to facilitate the adoption of certain resolutions that required a majority of all owners and quotas or even unanimity. On the one hand, the adoption of resolutions covered by Article 17.1 LPH (old version) should not be made more difficult by the absence of individual owners, which is why the votes of absent owners were counted as yes votes (unless they expressed the contrary within the specified 30-day period). On the other hand, due to the significance of these resolutions, absent owners should still be given the opportunity to exercise their voting rights promptly after the meeting (within the statutory period) and in the absence of participation.

However, the legislator did not provide for this option for the simple majority under Article 17.4 LPH (old version). As is currently the case, the following already applied at that time: If the meeting takes place at the second convocation, a simple majority of the votes and quotas of the owners present is sufficient to pass a resolution that only requires a simple majority. In our opinion, allowing the possibility of a subsequent declaration, i.e. one made after the meeting, in order to be exempted from the costs would have gone too far. The opinion expressed above, represented by Fuentes Lojo, seemed much more appropriate, despite its even more far-reaching consequences, according to which the absent owners would automatically, i.e. solely by virtue of their absence, be classified as dissidents.

However, given that the Spanish Condominium Act distinguishes elsewhere, namely in Articles 17.2.2 and 17.3.3 LPH a.F., very clearly distinguishes between owners who voted for or against the resolution and only obliges the former to pay their contributions, the same advantage could not be granted to those absent from the meeting if the law expressly provided for exemption only for dissidents.

Since all items to be voted on must be expressly specified in the notice convening the owners’ meeting (Article 16.2 LPH), no absent owner can (or rather, should) be surprised by the decision taken by the majority. If an owner is unable to attend, he can in any case be represented by a third party. In our opinion, there is therefore no valid reason to classify the absent owners as dissidents or to grant them a specific period of time in the present case within which they could subsequently obtain dissident status.

In our opinion, a dissident within the meaning of the old wording of the law could only be someone who had expressly opposed the measure by casting a dissenting vote. This was also the minimum requirement demanded by the absolute prevailing opinion.

However, there was also a dispute as to whether other factors had to be present in addition to the casting of a dissenting vote. The terminology used in Article 11.2 LPH (old version) was not directed at those in favour (it states that they are obliged to bear the costs) and did not distinguish between votes in favour and against, but merely referred to the exemption of dissidents. This could be interpreted to mean that, in theory, there should have been another action in addition to casting a dissenting vote. There were numerous conflicting opinions on this aspect in the literature and case law. Some argued that the resolution must also be challenged in court by the owner who wished to be considered a dissident, while others argued that a more or less clear rejection of the resolution by the owner at the meeting should suffice (casting a dissenting vote and, for example, making a special note in the minutes).

However, in our opinion, requiring a legal challenge would have been going too far. If this had been demanded, the court would first have had to examine whether there were grounds for contesting the decision. However, Article 11.2 LPH (old version) did not constitute any further grounds for contesting the decision in addition to those set out in Article 18 LPH, but was intended to constitute an exemption based on the nature of the measure and its costs. As Echeverria Summers aptly puts it, it would have been a flagrant contradiction if the legislature had, on the one hand, wanted to exempt individual owners from the obligation to contribute to unnecessary, expensive and unwanted measures and, on the other hand, imposed on them the obligation to take cost-incurring actions in the form of a judicial challenge.

The case would be completely different if the community had decided, for example, that the measure in question was of a necessary nature within the meaning of Article 11.1 LPH (old version), which is why no exemption for dissenting owners could be granted in this case, especially since there was an obligation to implement the measure anyway. If an owner were of a different opinion, he would of course have to challenge the resolution, as otherwise it would become final and unchallengeable after the expiry of the challenge period. However, the obligation to challenge does not arise from the requirement that this is the only way to obtain dissenting status, but from the need to challenge in good time any incorrect classification of the construction measure by the meeting.

In conclusion, it can be stated that, in our opinion, the owner’s casting of a dissenting vote was sufficient to qualify as a dissident. The owner’s request to the secretary or administrator to include a note in the minutes stating that, in addition to the dissenting vote, he also wished to express his position as a dissident within the meaning of Article 11.2 LPH (old version) could have been helpful. In this way, the desire not to participate in the costs of the measure would have been expressed directly, which would have allowed any dispute about the requirements to be raised at an early stage. This would also have satisfied the occasional administrators or owners who adhere to excessive formalities. Although this lacked any legal basis, the objection was often raised that the dissident should have pointed out his special position in the meeting.

Obtaining dissident status and thus exemption from the obligation to pay contributions for resolutions concerning unnecessary innovations and improvements which exceed three months’ contributions to the ordinary community expenses and which were adopted after 28 June 2013

Based on the wording of the current Article 17.4 LPH, the majority requirement has changed from a simple majority to a qualified majority of three-fifths of all votes and quotas. The rule in Article 17.8 LPH now also applies to these resolution items. Based on the current Article 17.8 LPH (and thus except in cases where the law expressly provides that only those owners who voted in favour of the proposal shall contribute to the costs, as provided for in Article 17.1.2 LPH) the votes of absent owners who do not exercise their voting rights vis-à-vis the secretary of the community within the statutory period of 30 days are counted as votes in favour of the provisional resolution of the owners participating in the meeting. In this case, the absent and subsequently inactive owner would, by virtue of legal fiction, vote in favour of the resolution, thus ceasing to be a dissident and subsequently having to contribute to the costs. This conclusion is reached not only on the basis of the current wording of the law, but also in particular on the basis of the above explanations of the old legal situation, since case law and literature, precisely in the absence of specific information on dissident status and the inapplicability of the presumption of consent contained in Article 17.1.4 LPH a. F., now Article 17.8 LPH, and in the case of resolutions requiring a simple majority, the case law and literature have arrived at the conclusions set out above. and since the aforementioned deemed consent of Article 17.8 LPH applies to this, every owner who does not wish to be required to pay must have voted against the resolution; absent owners must vote against the provisional resolution of the owners present within the 30-day period.

Only in cases where the resolution was passed before 28 June 2013 would it be necessary to refer to the old wording of the law and, in the absence of an explicit provision, clarify how to proceed with owners who did not attend the meeting.

As explained above with regard to the old legal situation, owners who vote against the resolution can only be advised to request that the minutes state that they expressly consider themselves dissidents within the meaning of Article 17.4 LPH and wish to be designated as such. Although there is no legal requirement to do so, the explicit designation as a dissident facilitates the subsequent enforcement of the right not to be required to contribute to the costs.

In the event of the transfer of separate property, the question arises as to who is responsible for the costs resulting from the implementation of the innovations or improvements. Is it the owner who held this position at the time the relevant resolution was passed, or does this obligation fall to the owner at the time the costs became due?

The measure is usually financed by means of a special levy, which is payable in several instalments. Article 17.11 LPH specifies in this regard that the payment obligation falls on the owner who is the owner at the time the total amount or the respective instalment is due. It is irrelevant whether or not this owner participated in the meeting at which the resolution was passed. They do not even need to have been aware of the resolution.

Privileged special cases justify;”>In addition to the provisions on general renovations and improvements, the Spanish Condominium Act specifies special cases which, either for environmental reasons (charging points for electric vehicles, renewable energies) or because of their minor impact on the community and their importance in the modern information society (infrastructure for telecommunications services), are subject to treatment that deviates from the general majority rules. For a better overview, all majorities required for the various construction measures are listed and described in the following section.

The following majorities were distinguished with regard to construction measures prior to the reform in 2013:

• Non-privileged construction measures affecting the declaration of division or the articles of association (requirement: unanimity)

If the construction measures led to a change in the content of the declaration of division or the community statutes and these measures were not subject to any privilege within Article 17 LPH a.F., i.e. there was no special provision deviating from the unanimity rule, a unanimous resolution of the owners’ meeting was required in accordance with Article 17.1.1 LPH (old version). The votes of the owners who were absent from the meeting and who did not exercise their voting rights within the statutory period of 30 days vis-à-vis the secretary of the community were treated in accordance with Article 17.1.4 LPH (old version) as if they agreed with the provisional resolution of those present. Since unanimity was required in this case, the dissenting vote of a single owner participating in the meeting was sufficient to defeat the resolution. If unanimous approval was achieved by those present at the meeting, the behaviour of those absent was decisive. If they all remained inactive or agreed to the provisional resolution, the deemed consent described above applied. The prerequisite for the 30-day period to begin was, of course, that the absent owners were informed of the provisional resolution of those present. If there was unanimity, all owners were obliged to bear the costs, as they had either expressly or by failing to exercise their voting rights agreed to the resolution (due to legal requirements).

• Creation or removal of communal facilities of general interest (requirement: 3/5 majority)

The creation or removal of community facilities of general interest required, in accordance with Article 17.1.2 LPH (old version), the consent of three-fifths of all owners, who in turn held three-fifths of the participation quotas, even if this resulted in an amendment to the declaration of division or the articles of association. When introducing new communal facilities in the public interest that had the effects described above on the declaration of division or the community statutes, it was irrelevant whether or not they were necessary for the proper maintenance, habitability, safety or accessibility of the property, in accordance with its nature and characteristics. If the resolution was validly adopted, all owners were obliged to bear the costs. In these cases, too, the consent of absent owners who did not exercise their voting rights within the statutory 30-day period was deemed to have been given. The validly adopted resolution was binding on all owners in accordance with Article 17.1.5 LPH (old version).

• Construction measures aimed at removing architectural barriers that affected the declaration of division or the articles of association (requirement: simple double majority of all votes and quotas)

If the intended measure to remove architectural barriers affected the declaration of division or the community statutes, the resolution relating to this had to be passed by a simple majority of votes and quotas of all owners in accordance with Article 17.1.3 LPH (old version). As in the other majorities described in Article 17.1 LPH (old version), the deemed consent of absent owners also applied here. It should also be noted here that the resolutions effectively adopted in accordance with Article 17.1.5 LPH (old version) were binding on all owners.

• New features and improvements in the area of telecommunications and energy (requirement: 1/3 of all owners and quotas)

According to Article 17.2 LPH (old version), one third of the owners forming the community, who in turn held one third of the participation quotas, could decide on the installation or adaptation of existing communal infrastructure which enabled access to the telecommunications services regulated by Royal Decree 1/1998 of 27 February, as well as the creation of systems owned by the community or individually owned systems for the use of solar energy, or the necessary infrastructure to enable access to new collective electricity supply facilities.

In this case, the community could not pass on the costs of installing or adapting the said communal infrastructure, nor the costs of subsequent maintenance and servicing, to those owners who had not expressly approved the decision at the meeting. Nevertheless, should they subsequently wish to apply for access to the telecommunications services or electricity supply facilities and it be necessary to use the newly created infrastructure or the adaptations made to the existing infrastructure, they could be granted authorisation to do so, provided that they paid the amount that would have been due to them at the time (Article 17.2.2 LPH, as amended), updated in an appropriate manner by applying the statutory interest rate. which would have been payable by them (at that time) (Article 17.2.2 LPH, old version).

• Creation or removal of communal facilities to increase energy or water consumption efficiency, which was covered by the declaration of division or the articles of association (requirement: 3/5 of all owners and quotas)

The acquisition or removal of appliances or systems other than those mentioned in Article 17.2 LPH (old version) which were intended to improve the energy or water consumption efficiency of the property, required the consent of three-fifths of all owners, who in turn held three-fifths of the participation quotas, even if this meant amending the title deed or the articles of association. The resolutions validly adopted in accordance with this provision were binding on all owners.

• Creation or removal of non-communal facilities to increase energy or water consumption efficiency affecting the declaration of division or the articles of association (requirement: 1/3 of all owners and shares)

According to Article 17.3.2 LPH (old version), the consent of only 1/3 of all owners and participation quotas was required for an effective resolution if the devices or systems were for the exclusive use of individuals (or a group of owners). The associated costs, as well as maintenance and servicing, were borne solely by those owners who had approved the resolution, in accordance with Article 17.3.2 in conjunction with Article 17.2 of the LPH (old version).

• Installation of individual charging stations for electric vehicles for personal use (requirement: notification)

Article 17.3.3 LPH (old version) stipulated that if there was an intention to install a charging port for electric vehicles for private use in a car park belonging to the property, only prior notification to the community was required as long as the installation was located on a single parking space. The installation costs were to be borne in full by the owner(s) directly affected.

• Obligation to carry out special maintenance and repair measures relating to stability, protection against moisture, habitability, accessibility and safety

Article 10.1 LPH a.F. obliged the community to carry out maintenance and repair measures that would have been necessary for the appropriate structural stability, protection against moisture, habitability, accessibility and safety.

• Obligation to create individual accessibility and provide aids

Section 10.2 LPH (old version) justified upon request by an owner in whose dwelling disabled persons or persons over the age of seventy lived, worked or performed services altruistically or voluntarily, the obligation of the community to carry out the measures and construction work necessary to enable access to the communal facilities appropriate to their disability. In addition, there was also an obligation to install mechanical and electronic equipment to facilitate communication with the outside world. In both cases, however, this obligation only applied as long as the cost of the measure did not exceed the amount of twelve ordinary monthly contributions to the general community expenses. If the costs exceeded this limit, a decision by the owners’ association was required. As an exception, this obligation did not apply if the costs were below the specified twelve monthly contributions to the community expenses but one of the owners in the property was below the low-income threshold of 2.5 times the Indicador Público de Renta de Efectos Múltiples (IPREM).

• New floors and other changes to the building structure, building fabric or items owned by the community

Article 12 LPH (old version): The construction of new floors and any other alteration to the structure of the building or the building fabric or to items owned jointly by the owners affect the title deed and must be subject to the regulations governing its amendment. With regard to the majorities applicable in this case, reference is made to the following section devoted to this question.

• • All other measures

Those construction measures that could not be classified in the categories described above were subject to the general simple majority requirement contained in Article 17.4 LPH (old version). This means that a majority of all owners and quotas was required in the first convocation, and a majority of votes and quotas of the owners present or represented in the second convocation.

In the case of a simple majority under Article 17.4 LPH (old version), the classification of the measure as necessary or unnecessary within the meaning of Article 11.1 LPH (old version) and the question (in the case of unnecessary measures) of the amount of the costs per owner were relevant. If a measure was not necessary within the meaning of Article 11.1 LPH (old version) and the implementation costs exceeded the sum of three ordinary contributions to the community expenses, the dissenting owners were exempt from the obligation to bear the costs.

Conflict between Articles 12 and 17 LPH (old version) in meetings that took place before 28 June 2013

According to Article 12 LPH (old version), the construction of new floors and any other alteration to the building structure or fabric, or to the communal facilities, required the legally prescribed majorities for amending the declaration of division.

Strictly speaking, based on the wording, a distinction could be made between two types of measures (superstructure on the one hand and changes to the building structure, fabric or communal facilities on the other). In both cases, there were many indications that unanimity might be required. While this was undoubtedly true for a resolution permitting development, resolutions aimed at changing the building structure, building fabric or communal facilities had to comply with the privileges formulated in Articles 10, 11 and 17 of the LPH (old version).

Even if one could have correctly assumed at first glance that a unanimous decision by the owners’ meeting would always have been required for such changes to be carried out lawfully, a glance at the exceptions to the unanimity requirement contained in the Spanish Condominium Act in the version valid until 27 June 2013 that unanimity was only required in the case of changes that were of a significant nature, directly affected the description in the declaration of division and the community statutes, and did not fall within the exceptions contained in Articles 10 and 11 LPH (old version). nor within the scope of the privileged majorities of Article 17 LPH (old version).

However, if unanimity was actually required because the measure fell under Articles 12 and 17.1.1 LPH (old version), the following requirements had to be observed:

• The nature of the measure had to be determined in the resolution.
• The resolution also had to describe in detail the changes resulting from it.
• The participation quotas had to be changed (if the measure affected Article 3.a.) LPH) and thus the extent of the obligation to participate in the general expenses of the community.
• When it came to the development of the property, the resolution had to provide information about the future owners who would benefit from it.

The reform of the Spanish Condominium Act, which came into force on 28 June 2013, transferred the regulatory content of the now obsolete Article 12 LPH (old version) to the current Article 10.3.b.) LPH. At the same time, an explicit majority requirement was specified. Now, the construction of new floors and any other changes to the building structure or fabric, including the closure of terraces and changes to the (building) envelope to improve energy efficiency, require only a three-fifths majority of all votes and quotas. It should be noted that, in individual cases, exceptions to this rule may apply in accordance with Articles 10 and 17 LPH due to the privileged status of construction measures aimed at removing architectural barriers.

Majority requirements for construction measures according to subject matter since 28 June 2013

With regard to construction measures, the Spanish Condominium Act currently distinguishes between the following majorities or measures that must be implemented:

• Repairs and maintenance measures

Article 10.1.a.) LPH stipulates that repairs, maintenance and conservation measures are mandatory. In principle, no majority is required for these measures. The community is obliged to carry them out. However, a decision is still required in order to select the most suitable option from several different options serving the same purpose. Similarly, a choice will regularly have to be made between different cost estimates. Such measures are therefore not automatic and, despite the wording of the law, require a corresponding decision, which can be adopted by a simple majority of the votes and quotas of the owners present at the meeting.

• Achieving reasonable accessibility

In accordance with Article 10.1.b.) LPH, the community is also obliged to ensure the necessary adjustments for reasonable or appropriate general accessibility (ajustes razonables en materia de accesibilidad universal).

Furthermore, if disabled persons or persons over the age of seventy live, work or perform services in a separately owned property, the owner of the separately owned property is entitled to appropriate, i.e. necessary, adjustments to the common property to meet their specific needs, provided that the cost of the measure does not exceed twelve months’ contributions to the ordinary community expenses, or if the owner is prepared to bear the costs exceeding this amount himself.

The same applies to the installation of ramps, lifts and other mechanical or electronic aids. As long as the costs incurred for this do not exceed the amount of twelve monthly contributions to the ordinary community expenses, there is an obligation to install them.

• Additions, alterations to the building structure or fabric or other common elements due to inclusion in the scope of a municipal redevelopment or renewal and renovation area requiring this in accordance with Article 10.1.d.) LPH (obligation of the community to permit this).

If the property (to which the owners’ association extends) is located within the scope of an urban redevelopment or renewal and renovation area, this may result in the construction of new floors or changes to the building structure, building fabric or items owned by the community being prescribed. In such a case, the community is also obliged to carry out the work.

• Division, extension and separation of individual properties in an urban redevelopment or renewal and renovation area permitting such measures in accordance with Article 10.1.e.) LPH (obligation of the community to permit this).

If the property has been included in the scope of an urban redevelopment or renewal and renovation area which allows special property to be legally divided on one’s own initiative (to create smaller and independent parts), expanded (by adding other adjacent special property elements belonging to the same community) or reduced (by separating a part), each owner is entitled to do so.

• Division, extension, separation, addition of storeys, closure of terraces, alteration of the building envelope, if the property is not located in an urban redevelopment or renovation area subject to special assessment, in accordance with Article 10.3.b.) LPH (requirement: 3/5 of the votes and quotas of all owners).

Contrary to the obligation described in Article 10.1.e.) LPH, to allow the measures described therein if the property is located within the scope of an urban redevelopment or renewal and renovation area, if the property is not located in such an area, the division of the elements of exclusive ownership into smaller and independent parts, the extension of their areas by adding other, adjacent parts of the same building, or reducing them by separating off any part, the construction of new floors and any other alteration to the building structure or fabric, including the closure of terraces and changes to the building envelope to improve energy efficiency, a three-fifths majority of all votes and quotas is required.

• Innovations and improvements in the field of telecommunications and energy, in accordance with Article 17.1 LPH (requires: 1/3 of all votes and quotas)

In accordance with Article 17.1 LPH, one third of all owners belonging to the community, who in turn hold one third of all participation quotas, may decide on the installation or adaptation of existing communal infrastructure which enable access to the telecommunications services regulated by Royal Decree 1/1998 of 27 February, as well as the creation of systems owned by the community or individually owned systems that use renewable energy, or the necessary infrastructure that provides access to new collective electricity supply facilities, may be decided upon.

In this case, the community may not pass on the costs of installing or adapting the said communal infrastructure or the subsequent maintenance and servicing to those owners who did not expressly approve the decision at the meeting. Nevertheless, should they subsequently request access to the telecommunications services or electricity supply facilities and it be necessary to use the newly created infrastructure or the adaptations made to the existing infrastructure, they may be granted authorisation to do so, provided that they pay the amount updated in an appropriate manner by applying the statutory interest rate which would have been payable by them (see Article 17.1.2 LPH).

Despite the special rules regarding costs, the facilities or adaptations are classified as common elements (see 17.1.3 LPH).

• Creation or removal of communal facilities or systems that serve to improve energy efficiency or reduce water consumption and are not covered by Article 17.1 LPH, even if they relate to the declaration of division or the articles of association, in accordance with Article 17.3.2 sentence 1 LPH (requirement: 3/5 majority of all votes and quotas).

The acquisition or removal of installations or systems other than those mentioned in Article 17.1 LPH, which are intended to improve the energy or water consumption efficiency of the property, requires the consent of three-fifths of all owners in accordance with Article 17.3.2 LPH, who in turn hold three-fifths of the participation quotas, even if this means amending the title deed or the articles of association. The decisions validly taken in accordance with this provision are binding on all owners, as specified in Article 17.3.2 sentence 2 LPH.

• The introduction or removal of installations or systems that serve to improve energy efficiency or reduce water consumption, are not covered by Article 17.1 LPH, and are for the exclusive use of individual owners, pursuant to Article 17.3.2 sentence 3 LPH (requirement: 1/3 majority of all votes and shares).

According to Article 17.3.2 LPH, the consent of only 1/3 of all owners and participation quotas is required for an effective resolution if the devices or systems are for the exclusive use of individuals. The distribution of the costs of such measures is governed by Article 17.3.2 LPH in accordance with the provisions of Article 17.1 LPH, i.e. only those owners who voted in favour of the proposal must contribute to the costs. The others must then pay their (updated) contribution if they wish to be connected to these installations or systems.

• Construction measures aimed at removing architectural barriers, the creation of community services serving this purpose and the installation of lifts, even if these measures affect the declaration of division or the articles of association, and notwithstanding the obligations arising from Article 10.1 LPH, in accordance with Article 17.2 LPH (requirement: simple double majority of all votes and quotas)

If the construction measure serves to achieve accessibility or if community facilities are created for this purpose, it is irrelevant whether this affects the declaration of division or the community statutes. The resolution aimed at its implementation requires only a simple majority of votes and quotas of all owners in accordance with Article 17.2 LPH. The same applies to the installation of a lift. As in the other majorities described in Article 17 LPH, if none of the legal exceptions apply, the deemed consent of the absent owners also applies here. In this case too, pursuant to Article 17.9 LPH, the effectively adopted resolutions are binding on all owners. They are obliged to bear the costs even if the costs of the measure exceed twelve monthly contributions to the ordinary community expenses (cf. Article 17.2.2 LPH). As Article 17.2 LPH itself states, the double majority of votes and quotas is only required if, due to the specific circumstances, there is no obligation to implement the measure on the basis of the provisions of Article 10.1 LPH.

• Creation or removal of gatekeeper, caretaker or security services and other community facilities of general interest, in accordance with Article 17.3.1 LPH (requirement: 3/5 majority)

The creation or removal of communal facilities of general interest requires, in accordance with Article 17.3 LPH, the consent of three-fifths of all owners, who in turn hold three-fifths of the participation quotas, even if this results in an amendment to the declaration of division or the articles of association. In these cases, too, the consent of absent owners who have not exercised their voting rights within the statutory 30-day period is deemed to have been given. The resolution that has been validly adopted is binding on all owners in accordance with Article 17.9 LPH.

• Creation of innovations, new facilities, services or improvements that are not necessary for the proper maintenance, habitability, safety or accessibility, in accordance with Article 17.4 LPH (requirement: 3/5 majority of all votes and shares)

Unlike those described in Article 10.1 LPH, such measures cannot be enforced without achieving a corresponding majority due to lack of necessity. Rather, a double three-fifths majority of all votes and quotas is required. If the costs per owner exceed three months’ contributions to the ordinary community expenses, the dissidents are exempt from the obligation to pay. The deemed consent provision of Article 17.8 LPH applies to absent owners who do not exercise their right to cast a dissenting vote within the 30-day period granted to them from notification of the preliminary voting result.

• Installation of individual charging stations for electric vehicles for personal use, in accordance with Article 17.5 LPH (requirement: notification)

Article 17.5 LPH stipulates that if there is an intention to install a charging port for electric vehicles for private use in a car park belonging to the property, only prior notification to the community is required as long as the installation is located on a single parking space. The installation costs and energy consumption are to be borne in full by the owner(s) directly concerned.

• Non-privileged construction measures affecting the declaration of division or the articles of association, in accordance with Article 17.6 LPH (requirement: unanimity)

If the construction measures lead to a change in the content of the declaration of division or the community statutes and these measures are not subject to any privileges within Articles 10 and 17 LPH, i.e. there is no obligation to carry out the measure and there is no special provision deviating from the unanimity rule, a unanimous resolution of the owners’ meeting is required in accordance with Article 17.6 LPH. The votes of owners who are absent from the meeting and who do not exercise their voting rights within the statutory period of 30 days by notifying the secretary of the community are treated in accordance with Article 17.8 LPH as if they agreed to the provisional resolution of those present. Since unanimity is required in this case, the dissenting vote of one owner participating in the meeting is sufficient to defeat the resolution. If unanimous approval is achieved by those present at the meeting, it depends on how the absent owners behave. If they all remain inactive or agree to the provisional resolution, the deemed consent described above applies. The prerequisite for the 30-day period to begin is, of course, that the absent owners have been duly informed of the provisional resolution of those present. If unanimity is achieved, all owners are obliged to bear the costs, as they have agreed to the resolution either expressly or by failing to exercise their voting rights.

• All other construction measures for which there is no obligation to carry out, no privileges are provided, and the title of incorporation or the articles of association are not affected, in accordance with Article 17.7 LPH (requirement: simple majority)

Those construction measures that cannot be classified in the categories described above are subject to the general simple majority requirement contained in Article 17.7.1 LPH. This means that the first convocation requires a majority of all owners and quotas, and the second convocation requires a majority of votes and quotas of the owners present or represented.