Rights, obligations and prohibitions in the area of Spanish condominium law (Part I: Rights)

If the legal order of coexistence within the community of owners is to be described, one would, strictly speaking, have to start by making a distinction between two essentially independent areas. On the one hand, there are regulations aimed at ensuring that the community can be managed in accordance with the legal requirements, for which the organization, distribution of tasks, decision-making, financing, etc. must comply with the law. On the other hand, it is not enough for the formal requirements of the legal processes to be fulfilled. The factual coexistence of the owners, who, due to the nature of the condominium relationship, are dependent on using the common property more or less intensively and sometimes live next door to each other in the same property, also requires mutual consideration and compliance with rules that guarantee the quality of life and safety of all owners.

In order to enable all these requirements to be met, each owner has numerous rights and obligations which, in addition to the prohibitions that must also be observed, are explained in more detail below.

Rights in Spanish condominium law

We begin our explanations with the rights attributable to the owners. Due to the relative complexity of condominium ownership relationships, different approaches could be used to structure an explanation of these. One possible starting point could have been to distinguish between the rights relating to separate property on the one hand and common property on the other. Alternatively, from a different perspective, a distinction could have been made between positive and negative rights, because strictly speaking, the rights of owners include not only those relating to positive actions that they are entitled to take, but also, in negative terms, the right not to be inconvenienced by the non-observance of obligations or prohibitions of other owners. Although the depiction of such structures might have had the advantage of conveying the essence of condominium ownership more systematically, the downside would have been a loss of clarity. However, since the main purpose of this treatise is to answer the most frequently asked questions and to provide solutions to the main problems of Spanish condominium law, and since the focus should not be on legal doctrine, we have refrained from making the explanations confusing by means of a widely ramified structure.

Instead of dividing the rights into numerous categories and subcategories and further differentiating between authorizations and areas of protection, we have preferred to list the rights in a loose order for the sake of clarity and, where necessary, to provide further details.

Right of disposal in Spanish condominium law

In accordance with Article 3.a.) LPH, each owner has the individual and exclusive right of ownership over their separate property. This means, among other things, that they can use it as they wish (unless the law or the rights of third parties dictate otherwise). The respective co-ownership share in the common property is inseparably linked to the special property. In addition to this right of determination or disposal over his or her separate property, the owner therefore necessarily also has a corresponding right over the common property. However, as this cannot be detached from the separate property, the share is expressed in a quota and belongs in its entirety to all members of the community of owners together, this right of determination or disposal can generally only be exercised together with the right to the separate property associated with it. An exception to this are cases in which the owners’ meeting decides, for example, that the janitor’s or porter’s apartment, which is to be classified as common property, is to be sold or rented to a third party. In this case, the owner actually disposes of the common property (in connection with a resolution of the meeting) in a similar way to how he could dispose of his separate property.

The right of disposal also includes the right to modify the architectural elements and fittings of any kind in the condominium, whether visible or not, as long as they serve the exclusive purpose of the respective owner and as long as neither the security of the building, its general structure, its layout or the external condition deteriorates or changes, nor the rights of another owner are impaired. The president of the community must be notified in advance of any such construction work.

Right of use in Spanish condominium law

The right of the owner to use the separate property according to their own wishes and ideas is also derived from the position of owner. Due to the nature of condominium ownership, however, limits must be placed on this use where the use of the separate property by individual owners has a negative impact on the other separate property elements and the other owners. For this reason, both the owners and the other residents are prohibited from engaging in activities inside the condominium that violate the general immission control regulations, are disruptive, hazardous to health, harmful, dangerous or prohibited or are incompatible with the community statutes.

In addition to the use of the separate property, the owner is also entitled to make use of the common property. Just as in the case of the separate property, this use may only take place in compliance with the legal requirements and the provisions contained in the community statutes. In addition, it is also important to observe any existing house rules, which may not contain any regulations regarding the separate property, but may contain regulations regarding general cohabitation and in particular the use of the common property.

Right to demand repairs, maintenance and conservation measures

According to Article 10.1 LPH, it is one of the obligations of the community of owners to carry out repairs, maintenance and conservation measures. If the community does not fulfill this obligation, each owner is entitled to demand it.

Right to demand necessary innovations and improvements

The reverse conclusion can be drawn from Article 17.4 LPH that the owners are entitled to demand the innovations and improvements required under Article 17.4 LPH.

Right to remove architectural barriers

It follows from Article 10.1.b.) LPH that the community is obliged to carry out those measures that are necessary to achieve a reasonable adaptation of the property to general accessibility. At the request of owners in whose homes disabled persons or persons over 70 years of age live, work or provide their services altruistically or voluntarily, those building measures must also be carried out that are necessary to enable access to the communal facilities that is suitable in relation to their disability, as well as to install mechanical and electronic devices that facilitate connection with the outside world. This obligation is practically unlimited as long as the total costs involved (after deduction of any subsidies received) do not exceed the amount of twelve ordinary monthly contributions to general community expenditure. If the costs exceeding this amount are borne by the applicant, the obligation to implement the measure remains in force.

Voting rights in the Spanish community of owners

Each owner has one vote at the owners’ meeting (head principle) and a quota expressed as a percentage corresponding to the amount of their share in the common elements.

If an owner owns several condominium elements, they only hold a single vote, but this vote carries the weight of all quotas of the condominium elements they own. For example, if an owner owns five apartments, each with a shareholding quota of 10%, they have a single vote but a total shareholding quota of 50%.

As the legislator always requires a certain number of votes and quotas to be achieved for resolutions to be passed, this creates a balance between the majorities among the owners (head principle) and the quotas attributable to them (economic share in the community). If an owner holds a large number of condominium elements (e.g. the developer), they cannot unilaterally dictate the resolutions they want, as they only have a single vote. On the other hand, this prevents the other owners from imposing resolutions on him, the implementation of which he has to finance to a large extent due to his quotas.

In this context, Article 15.2 of the LPH must be taken into account, according to which the owner who is in arrears with his contributions to the community expenses at the time of holding the meeting shall temporarily lose his right to vote if he has not deposited the amounts in accordance with the requirements set out in the same article or has contested the resolution on which they are based.

Authorization to hold office

Each owner is generally entitled to hold office within the community of owners. This is particularly important with regard to the office of president, which may only be held by owners in accordance with Article 13.2 LPH. This is particularly important with regard to the office of president, which may only be held by owners in accordance with Article 13.2 LPH. For the same reason, any existing offices of Vice President(s) may also only be held by owners.

Contesting resolutions of the owners’ meeting

Any owner may challenge the resolutions adopted by the owners’ meeting if he/she is of the opinion that one of the grounds for challenge specified in Article 18 LPH applies.

Of course, a resolution cannot be contested by the person who approved it at the meeting.

It is also necessary that the contesting owner does not owe any contributions to the community expenses. If this is the case, he may nevertheless bring an action if he deposits the contributions owed in accordance with the legal requirements of Article 15.2 LPH. If the subject of the action is a resolution aimed at determining or changing the participation quotas, this requirement is waived in accordance with 18.2 LPH.

Insertion of an item on the agenda

In accordance with Article 16.2.2 LPH, each owner is entitled to request the inclusion of an item on the agenda of the next owners’ meeting. To this end, they must contact the president of the community of owners in good time.

Right to convene an owners’ meeting

In accordance with Article 16.1 LPH, a group of owners may request the convening of an owners’ meeting if the said group accounts for at least one quarter of the quotas or votes of the community.

Invitation to the owners’ meeting

The right of the owners to convene a meeting (by a group holding at least one quarter of the votes or quotas of the community) in accordance with Article 16.2 LPH is of particular importance with regard to the aforementioned right to convene a meeting themselves, i.e. bypassing the president (e.g. if the office is not occupied, is not actually exercised or the president refuses to do so).

Right to inspect the Community’s documents

Every owner is entitled to inspect the documents of the community.

You can find out more about the obligations and prohibitions within the Spanish community of owners in the dedicated articles.