Declaration of division, articles of association and house rules
Find out everything you need to know about these topics as a member of a community of owners in Spain in the following text.
Content of the foundation title or the declaration of division
[pullquote]Among other things, the declaration of division must state the respective participation quota of the individual condominium elements.[/pullquote]
In accordance with Article 5 LPH, the foundation title must contain a number of minimum details. This includes a description of the property in its entirety as well as the apartments and business premises, which must be numbered consecutively. The description of the property must contain the information required by mortgage legislation (see Article 9 LPH) and reflect the installations and facilities it has in an appropriate manner. For each dwelling or commercial premises, the surface area, boundaries, floors and associated structures such as garages, attics or cellars must be indicated. Furthermore, the respective share in the common property attributable to the individual apartments or business premises must be shown.
The Community Statutes
In addition to this essential information, the founding title may also directly contain provisions aimed at regulating the functioning of the Community. These provisions form the so-called Community statutes. There is no obligation to include them in the founding title or to adopt them at a later date. Their content may not contradict binding legal requirements. They are binding on all owners, but are only valid vis-à-vis third parties when they are entered in the land register. This means that if a statute is adopted at a later date or an existing one is amended, it must be observed by all existing owners at that time (who have been informed of the resolution). However, if no entry is made in the land register, future (and uninformed) owners are not bound by them, as their rights cannot be restricted in the light of the law beyond the extent described in the land register.
Article 5 LPH describes the regulatory areas for which the Community statutes can make provisions. The following classification can be made:
[pullquote]As a rule, the developer will also draft a community statute in addition to the declaration of division before selling the condominium elements. As long as he, or a single party, holds the reins, there are no difficulties in formulating the articles of association. [/pullquote]
- Regulations on the establishment of rights and their exercise (i.e. the creation of rights and obligations of a general nature that do not already arise from the law and their exercise or compliance).
- Regulations regarding the use and purpose of the common property, including its installations and facilities, as well as the special property in the form of the apartments and business premises (these can be used to complete the legal requirements or modify them to the extent permitted by law).
- Regulations regarding the allocation of and participation in costs (extension or restriction of legal requirements, where permitted).
- Regulations regarding the administration and management of the community (extension or restriction of the legal requirements, where permitted).
- Regulations regarding insurance, maintenance and repairs (extension or restriction of legal requirements, where permitted).
Entry of the community statutes in the land register
[pullquote]As long as the articles of association have not been entered in the land register, or the respective owners were aware or should have been aware of them, their content cannot be held against them.[/pullquote]the following must be done: In order for the articles of association or individual resolutions to be effective against third parties, in particular future owners, they must be entered in the land register.
- A unanimous resolution of the owners present or represented at the owners’ meeting is required.
- The absent owners must be informed of the content of the meeting and the provisional voting results.
- None of the owners invited but not present may oppose this resolution within the 30-day period specified in Article 17.8 LPH.
- The president must have been authorized by the owners’ meeting to certify the corresponding resolution before a notary. Otherwise, all owners would have to appear for the notarization. This authorization must be clear and unambiguous as to its purpose in order to remove any possible doubt.
- Notarization should be carried out promptly to ensure that the owners who have unanimously agreed to this or who have been bound by the resolution are identical to the owners listed in the land register. If a longer period of time passes, new owners could take the place of the old owners through the sale of individual special property elements. These would then not be bound by the resolution in the absence of an entry in the land register.
- It is advisable to inform the notary who will later notarize the meeting of the intended resolution and the wish to have it subsequently notarized before the meeting is held and even before the summons is sent out. In this way, everything necessary
can be prepared and arranged accordingly in consultation with the notary who will record the resolution.
The house rules
In Spain, a distinction is made between the Estatutos and the Reglamento de Régimen Interior. We have translated these terms as statutes and house rules respectively. Although the terms “statutes” or “community regulations” do not appear directly in German condominium law, they are used (synonymously) in case law and literature. However, in order to avoid confusion between the terms “GemeinschaftsO” and “HausO”, we use the terms described here.
The community house rules(Reglamento de Régimen Interior) should not be confused with the statutes(estatutos). In accordance with Article 6 LPH, they regulate the use of the common property and the details of living together. Regulations relating to individual property may therefore not be included in the house rules. Prohibitions regarding the exercise of certain activities within the individual property elements are reserved for the articles of association; their inclusion in house rules would be unlawful. In contrast to the community statutes, the house rules cannot be entered in the land register. Just like unregistered bylaws, future owners are not directly bound by the house rules. They only have to accept the house rules if they were aware of their content or at least their existence before acquiring the separate property. Typical areas of regulation in house rules are the determination of times of use of communal swimming pools or sports facilities, the obligation to lock entrances or quiet times. Despite all the differences, the boundaries between bylaws and house rules are blurred in practice, as many bylaws also contain provisions that would actually belong in house rules. By taking a detour via the articles of association, regulations that actually only concern the use of the common property are also entered in the land register.
Regulation of condominium ownership through bylaws and house rules
The purpose of community bylaws and house rules is to shape the statutory framework through individual regulations or, in the case of the bylaws, even to intervene in the specifications created by the law through amendments in order to achieve an adaptation to the wishes and needs of the person or persons making the bylaws. Article 5 LPH expressly provides for this possibility to create new rights and obligations for owners and to modify the order created by the law. However, only insofar as these do not violate legal prohibitions. Pursuant to Article 6 LPH, the house rules can only issue further regulations in compliance with the provisions formulated by the law and any existing articles of association.
When assessing which regulations are permissible in the community statutes or house rules, it is therefore first necessary to clarify which legal requirements may not be changed and which legal prohibitions must be respected. The Spanish legislator has introduced the LPH with an explanation of the objectives pursued by this law. Although it claims that it is possible to deduce directly from the law itself which provisions may be amended, in reality this distinction is far more difficult and is the subject of extensive case law and literature. Although it is clear from the wording or principle of some articles of the LPH whether the provisions contained therein are binding or can be amended by the articles of association, there is broad agreement only in very few cases. It often depends on the specific case and the exact content of the articles of association. Ultimately, it depends on the new provisions created by the amendment themselves as to whether or not they constitute an infringement. Article 16.1 LPH, for example, stipulates that a quarter of the owners or a group of owners representing at least 25% of the participation quotas may request the holding of an owners’ meeting. A reduction of this requirement by statute to, for example, one fifth of the owners or to a group of owners accounting for at least 20% of the participation quotas would be lawful, while an increase would be contrary to the law and may not be implemented. In addition to the distinctions within the LPH, it must be taken into account that, outside of this law, neither the bylaws nor the house rules may contravene Article 396 of the C.C. (although, of course, the community elements described therein may deviate from the provisions made here in specific cases) or Articles 8.4, 8.5 (possibility of registering the separate property in the land register) and 107.11 (possibility of mortgaging the separate property registered in the land register) of the Ley Hipotecaria.
You can find this graphical overview, together with numerous other diagrams, in our work Praxishandbuch Wohnungseigentumsrecht in Spanien, or, if you register for our completely free and non-binding newsletter, you can download it from this page as a small thank you.
Before showing the hierarchy of norms in Spanish condominium law by means of a graphic overview, it is therefore only necessary to summarize the provisions and subjects of regulation which, according to prevailing opinion, are particularly worthy of protection and can only be amended or not amended to a limited extent. Following this chapter, the most frequent and important cases will be dealt with in the question and answer scheme in order to provide a more precise insight and practical solutions.
The legal requirements in the following areas are to be regarded as – at least partially – mandatory: Content of the declaration of division (5.2 LPH), stability, habitability, accessibility and security of the building (Articles 7.1, 7.2, 10, 17.4 LPH), obligation to maintain the common property and bear the costs (Articles 9.1.b.), 9.1.f.), 10, 17 LPH), requirements regarding the division, separation or connection of special property elements (Articles 10.1.e.) LPH and 10.3.b.) LPH and 8.2 LPH old version), existence and rights of the minimum required bodies of the community (Articles 13.1, 13.2, 13.3, 24.3.2 LPH), functioning and organization of the owners’ meeting (Articles 15, 16, 17, 19 LPH), core of the rights, obligations and prohibitions of the owners (3, 7.1, 7.2, 9 LPH), contestability of resolutions (Article 18 LPH), existence and
Minimum endowment of the reserve fund (additional provision LPH).
