Question: We own an apartment in Seville (Andalusia). In 2014, the owners’ meeting decided to install a solar thermal system for the entire community. At that time, such installations benefited from extensive incentives, such as subsidies that could cover up to 90% of the installation costs if the measure had actually been implemented in 2014 or early 2015. However, as the decision was not implemented at that time and more than a year had passed in the meantime, we soon found ourselves in a situation where the subsidies offered at the time, which we had taken into account, could no longer be claimed. For this reason alone, a decision was made at the last owners’ meeting in 2015 that contradicts the decision originally made in 2014. The meeting has now decided not to proceed with the installation. We would, of course, have been delighted to take advantage of the financial assistance offered, but for me personally, the environmental aspect is the most important factor. We would therefore still like to go ahead with the conversion despite everything. Is the community legally permitted to revoke a previously made decision?

Answer Your question actually touches on three different areas.

FIRSTLY: With regard to your actual question, namely whether a decision can be revoked, it must be said that even at this point in time, the respective Audiencias Provinciales (regional courts) still hold very different opinions. Nevertheless, the prevailing opinion is that, in the absence of an express prohibition in the Spanish Condominium Act, changes are permitted. To be as precise as possible, it should be mentioned that this possibility is likely to be subject to greater restrictions where the original decision grants a right to one or more owners. Otherwise, there could be a violation of the principle of ‘venire contra factum proprium’, which prohibits contradictory behaviour where it is necessary to protect the good faith or rights of third parties who could reasonably expect the promise to remain valid. However, if the decision was made solely in the interests of the community, it could well be argued that the community should also have the right to subsequently adopt decisions that contradict the original decision because its opinion may ultimately change. Irrespective of this, you can of course still challenge the decision in court if you believe that the change violates the law or the interests of the community or of individual owners.

Even if legal action is not always necessary, it can sometimes be helpful to remind those responsible of this option.

SECOND: The organs of the community – primarily, of course, the president and the administrator – are responsible for implementing the decisions made by the community. The implementation of the decisions made can even be enforced in court. It is important to understand that as long as the decision has not been amended or replaced by another, you could have forced the community to comply with the decisions. Although such a step is not always necessary, it can sometimes be helpful to remind those responsible of this option in order to avoid unnecessary delays, which could ultimately make proper implementation impossible.

THIRD: In view of the possible loss of subsidies, which may have led to a change in voting behaviour within the community, the following alternative should be highlighted:

Instead of adopting a new decision rejecting the introduction of the installation, it would also have been possible to hold those persons responsible for the economic damage who were responsible for implementing the original decision. If, in the end, the cause of the loss of subsidies was indeed their inaction and negligent disregard of their duties, claims for damages (in the amount of the subsidy) could arise. If these had been enforced, you would probably have seen a different voting behaviour in the end.

In any case, however, it must be borne in mind that the mere existence of subsidies is by no means a guarantee that they will be granted. It will always depend on the specific case. It is not unlikely that the aid envisaged would not have been granted even if it had been applied for in good time. Often, only a limited budget is available, and very often a large number of difficult requirements must be met. In such cases, it can be complicated to determine who is responsible, as the subsidies could have been denied for a variety of reasons without any culpable inaction on the part of the responsible party.

Since summer 2015, we have been covering topics related to Spanish law in the bilingual magazine ‘La Guía’. Both the published articles and the answers to readers’ questions are reproduced in full in German and Spanish.