The property manager

The manager is one of the bodies of the community in accordance with Article 13.1.d.) LPH. Unlike other offices, their responsibilities are very clearly defined by law and can largely be found in Article 20 LPH. According to this, the administrator is responsible for:

1. Ensuring the proper management of the building, its facilities and services and, to this end, providing the owners with appropriate information and reminders (Article 20.1.a.) LPH).

However, this does not mean that he can be expected to be personally present at all times (unless he is an owner living in the community). The administrator is also particularly dependent on being informed by the owners and other bodies of the community about any possible irregularities in order to fulfil the task set out in Article 20.1.a.) LPH. Nevertheless, committed (professional) administrators are characterised by the fact that they pay the community at least regular inspection visits. Even the best administrator can only perform his duties to a limited extent if he acts solely from his desk.

2. To prepare the foreseeable expenditure statement in a timely manner and submit it to the meeting for approval, as well as to propose the funds necessary to cover the costs (Article 20.1.b.) LPH).

Even if the wording chosen by the law may be somewhat cumbersome, Article 20.1.b.) LPH obliges the administrator to do nothing more than draw up a budget. This overview or statement must be provided at least in good time to enable the owners’ meeting to discuss and vote on it before a final decision is made. In order to give each owner sufficient insight into the budget proposed by the administrator and to enable a constructive discussion at the meeting, it seems advisable to send a complete overview of the budget together with the invitation to the owners’ meeting. In this sense, the budget must also be completed in good time so that it is available depending on when the meeting is to be held in accordance with the wishes of the community or the president. While owners’ associations in tourist areas with a low proportion of residential properties are well advised to hold their (ordinary) meetings in the summer or holiday months, when a higher attendance of owners is to be expected, associations in larger cities and with a high proportion of residential properties are likely to prefer to hold their meetings in the other months for exactly the same reasons. The business plan must then be drawn up in good time to take account of these individual requirements. LPH) to keep accounts, prepare a statement of accounts for the past financial year and render account thereof.

3. To take care of the maintenance and upkeep of the house/facility and to order any repairs and measures that are necessary for urgent reasons, whereby the administrator must immediately inform the president or, if applicable, the owners (Article 20.1.c.) LPH).

As stated in Article 14.c.) LPH, only the owners’ meeting is authorised to decide on all scheduled and unscheduled repair work. The administrator is therefore only authorised to act independently, without a resolution, if a repair or measure requires immediate action due to its urgency. Article 14.c.) LPH further specifies what is already stated in Article 20.1.c.) LPH, namely that the meeting must be informed immediately by the administrator of any urgent repairs or measures initiated by the administrator. In connection with the administrator’s right to carry out the urgent measures described, Article 7.1.2 LPH must also be taken into account. According to this, the owners are obliged to inform the administrator immediately of the need for urgent repairs. This is to prevent individual owners from taking unauthorised, possibly inappropriate or independent, i.e. parallel, measures on their own initiative, which would only increase the damage or result in it being repaired improperly due to a lack of coordination. The first point of contact for urgent repairs to common elements is therefore always the property manager. Ideally, they should always be available on an emergency number that is known to all residents of the property (e.g. by posting it on the notice board) and should already have suitable contacts with various emergency services so that such urgent repairs can actually be carried out promptly.

Conversely, it can be concluded that normal construction measures may only be initiated by the property manager if they have been decided upon by the owners’ meeting and the property manager has been commissioned to implement them. More on this in the following point.

4. To carry out those resolutions that relate to construction work and to make and collect all permissible payments (Article 20.1.d.) LPH).

Beyond the wording of the law, which expressly refers only to the implementation of resolutions relating to construction measures, resolutions relating to other matters must of course also be implemented unless the president decides otherwise.

With regard to construction measures, however, it is clarified once again that the administrator may ultimately only initiate construction measures that have either been decided upon by the owners’ meeting or constitute repair measures that do not exceed the amount specified in the expenditure plan (i.e. that can be considered planned in the broadest sense) or due to their unforeseeable nature and the urgency of their implementation, require immediate action by the administrator.

5. If necessary, to perform the duties of secretary if this office has not been assigned elsewhere or falls directly to the administrator, and to keep the community documents available to the owners (Article 20.e) LPH).

6. There is some debate as to whether it is also the responsibility of the administrator to decide which majorities are required to pass the respective resolutions. If the administrator is an external service provider, there is much to suggest that he or she is a suitably trained expert and therefore capable of making such determinations. In order to avoid unnecessary discussions at the meeting and to reduce the possibility of resolutions being contested at a later date, some authors recommend clarifying in advance which majorities are relevant and, ideally, announcing the required majorities in the invitation to the meeting.

7. To perform all other tasks and duties assigned by the meeting.

The administrator may be entrusted with any additional tasks. However, Article 13.1.2 LPH must be taken into account. Just as the creation of new bodies not provided for by law does not lead to a restriction of the tasks and responsibilities of the other bodies vis-à-vis third parties, the same applies to the transfer of tasks and duties to the administrator.

A common case, which is even provided for by law, is the authorisation of the administrator pursuant to Article 21.1 LPH to collect the contributions owed by the owners to the community expenses by means of a dunning procedure.

The administrator therefore takes on all administrative matters of the community, with the exception of those tasks that are explicitly assigned to the secretary. (Only the drafting of notices, their dispatch to the owners, the preparation of the minutes of the owners’ meetings and the issuance of certificates of resolutions shall be carried out by the secretary in accordance with the law).

Unlike in the case of the president, Article 13.6.2 LPH expressly provides that the office of administrator may be held not only by owners but also by qualified third parties.

However, there is disagreement as to what training a third party (i.e. a non-owner) must have in order to be considered qualified within the meaning of Article 13.6 LPH. The answer to this question is important not only in order to be able to select a suitable administrator, but also in particular insofar as individual owners could challenge the appointment of an administrator they consider unsuitable on the grounds of a lack of competence.

In any case, members of the official chamber of property administrators (Colegio de Administradores de Fincas) and those who meet the chamber’s admission requirements are considered suitable within the meaning of Article 13.6 LPH.

As described, owners do not need to have any knowledge, let alone special training, to be able to perform the duties of an administrator.

However, if it is a community with many elements of separate ownership and therefore many owners, it is strongly recommended that a professional property manager be appointed. Simply recording income and expenditure, taking into account and adhering to the respective payment deadlines (electricity, water, service providers, insurance, payroll accounting for employees of the community, etc.) or checking that there are sufficient funds in the account and initiating and monitoring maintenance and repair work already requires such a level of commitment that, even without any special incidents, a great deal of dedication is required.

Although Article 13.5 LPH stipulates that the duties of the administrator (and the secretary) are to be performed by the president, unless the articles of association or a majority resolution provide for these duties to be performed by a person other than the president, this legal requirement is the exception in practice given the background described above.

In view of the scope of the tasks assigned to the administrator and secretary, the assumption of all these duties by an owner who already holds the office of president regularly leads to an unreasonable workload and, as a result, often to a deficient performance of duties if the community is of a certain size and the owner in question also has to fulfil other (professional or private) obligations.

It is therefore strongly recommended that use be made of the option permitted by law to have the offices of administrator and secretary performed by professional service providers.

Usually, both offices are held by the same person (professional administrators) as secretary-administrator (Secretario-Administrador), which is expressly permitted by Article 13.6 LPH and also reflected in Article 20.1.e.) LPH, which states that the administrator may, if necessary, take over the duties of the secretary.

In this way, all administrative matters of the community are consolidated in one person, which makes things much easier for the administration as such (since all information is in one place) and for the owners (who now only have one contact person in addition to the president).