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

The members of the community of owners have the following obligations by law:

To make use of the common property in a respectful and appropriate manner

The owners are obliged to respect the general installations of the community and the other community elements and to make appropriate use of them so that they are not damaged or impaired. This obligation is independent of whether they may actually be used by the community as a whole or only by one or more owners by virtue of a special right of use. The location of the community elements also has no influence on this obligation. It is therefore irrelevant whether they are located inside a separate property element, whether they are only accessible via a separate property element or whether they can be reached directly via a common element. The obligation therefore applies equally to all owners.

Maintenance of special property and liability for damages in the event of lack of care

It is the responsibility of all owners to maintain their separate property and the installations for their exclusive use in good condition so that the community and the other owners do not suffer any damage. In this context, the owners are obliged to compensate for any damage caused by their lack of care or that of the persons for whom they are liable.

to permit repairs in the separate property and to allow easements

The owners are obliged to tolerate repair work in their separate property that is required for the operation of the property and to permit the establishment of essential easements that are necessary to create communal facilities that are in the common interest.

Article 9.1.c.) LPH thus describes two obligations that must be strictly distinguished from each other. The performance of repair work on the one hand and the establishment of easements on the other.

Repair measures

Repair work must always be permitted if it is necessary. Not every necessary measure is urgent at the same time. It can, but does not always have to be urgent repairs for this obligation to arise. Since the decision to carry out ordinary or extraordinary repair work in accordance with Article 14.c.) LPH must in principle be taken by the owners’ meeting and is subject to the simple majority of Article 17.7 LPH (simple majority of the votes and quotas of all owners in the first convocation, simple majority of the votes and quotas of the owners present in the second convocation), it is usually not difficult for the owner concerned to find out about the necessary measure in good time and to agree on a suitable time for implementation for all parties involved. Problems arise in particular when urgent repairs need to be carried out. In such cases, the administrator is entitled under Article 20.c.) LPH to initiate the urgent measures immediately in order to avert major damage (he only has to inform the president or the owners immediately). Obstacles may then arise due to the absence of the owner or the owner’s refusal to agree to such a (sudden, because unexpected) measure (even an appropriately announced and agreed measure may of course meet with resistance from the owner concerned).

Regardless of whether the repairs are merely necessary or urgent, it is generally not permitted to enter the special property element. It generally requires the consent or agreement of the owner granting access. Exceptions to this are cases of justifiable necessity, e.g. if the fulfillment of the offence of trespassing appears to be justified by the fact that, after weighing up the conflicting interests and based on the importance of the legal interests at risk in each case, an intrusion into the apartment of the absent owner (compared to waiting until access is granted) is the lesser evil. In principle, access to the special property element must be claimed if the owner refuses to allow it. If the repair measure is of an urgent nature, an application for access can be made by way of interim legal protection, articles 726, 727.11 LEC.

In jedem Fall sind die dem Eigentümer durch die Reparaturmaßnahmen entstandenen Schäden zu ersetzen. Wurde beispielsweise eine Wand aufgebrochen, um die unter Putz verbauten Wasserleitungen der Gemeinschaft zu reparieren, hat der Eigentümer einen Anspruch auf Wiederherstellung des ursprünglichen Zustands. D.h., dass die Öffnung verschlossen, der beschädigte Teil verputzt und die Wand gestrichen wird.

Easements

A wide range of different constellations can be categorized under the umbrella of the provision of Article 9.1.c.) LPH, which can sometimes have devastating consequences for the owner concerned, although one of the most common cases, namely the simple granting of access to the special property element, causes only minor inconvenience. For example, if the community of owners has decided to modernize the façade and access to a particular condominium element is advantageous for erecting the necessary scaffolding, the owner’s obligation to grant access to his apartment is derived from Article 9.1.c.) LPH. Based on this, similar cases can be constructed that lead to the same result. (e.g. access via an attic apartment to a communal antenna). In addition to this comparatively minor, because temporary and not particularly far-reaching obligation, a permanent burden can also be placed on an owner and an easement in the true sense of the word can arise. This is the case, for example, when cables have to be laid inside a condominium element. Understandably, this not only leads to aesthetic changes. Particularly in the case of installations installed above plaster, the pipes can sometimes take up considerable space.

However, an easement leads to particularly drastic effects if the installation is not just pipes but, for example, an entire elevator shaft that is subsequently installed in older buildings and for the creation of which one or more special property elements lose part of their area. The question then arises as to what extent this easement represents a permissible encroachment on the right to property and is still covered by Article 9.1.c.) LPH, or whether it already has an impermissible, expropriatory character. As soon as the easement leads (even if only partially) to the loss of the actual possibility of use by the owner, the affected party effectively forfeits the power of disposal over part of their special property. However, Article 530 of the Spanish Código Civil merely defines the easement as a burden, without it having expropriatory characteristics.

If one also takes into account that Article 17.4.3 LPH stipulates that the express consent of the affected owner must be obtained for the introduction of innovations that render part of the building unusable for one of the owners, it is hardly surprising that some case law requires the consent of the affected owner in the case of far-reaching (because permanent and space-intensive) easements that hinder the use of a special property element. Otherwise, an impermissible, expropriatory intervention was assumed. In addition to Article 17.4.3 LPH and 11.4 LPH (old version), this view was also based on Article 3.a.) LPH and 238 CC as well as 33 CE, all of which describe the fundamental inviolability of property.

Despite this quite justified classification, the prevailing opinion was that the right to inviolability of property within the framework of a community of owners must also be considered in relation to the rights of the other owners and should not be absolute. For example, the removal of architectural obstacles could certainly justify the creation of a more comprehensive easement. Although a permanent and space-intensive easement may only be created if there is no other, less restrictive (but practicable) solution to choose from, the special property element must not suffer any loss in terms of its suitability for residential or commercial purposes, and the part affected by the easement must only affect a negligible part in relation to the overall size of the special property element – it is nevertheless permissible if the usable area is reduced more than just imperceptibly in compliance with the aforementioned conditions.

The Tribunal Supremo followed the previously prevailing opinion on this issue and in relation to the installation of an elevator. Even if the dispute seems to have been settled on this basis, it still depends on the individual case, as can be seen from the decision itself. The only thing that is certain is that permanent and comprehensive easements are not inadmissible from the outset. However, it still depends on the purpose of the easement, how drastic the effects are for the affected owner and whether alternative solutions exist that are reasonable. With regard to the question of the majority required for the creation of an easement under Article 9.1.c.) LPH, the provision itself merely refers to the Spanish Condominium Act in its entirety, without making any restriction. Prior to the reform that came into force on June 28, 2013, Article 9.1.c.) LPH (old version) still referred to communal facilities of general interest when it came to determining which measures should benefit from such easements. At that time, however, this term was only used within Article 17.1 LPH old version. Prior to the reform, it was therefore discussed whether this meant that an easement could only be granted in the cases specified therein and if the majority of 3/5 of the votes and quotas of all owners present (absent owners are deemed to have approved the resolution adopted by those present if they do not object to the secretary within 30 days of notification of the provisional resolution). However, since the category of community facilities in the public interest was characterized by an open legal concept that could encompass a great deal (and not only the facilities described in Article 17.1 LPH old version), it was to be assumed that the other community facilities described in Article 17 LPH old version would also be covered by Article 9.1.c.) LHP old version and that there was no restriction to the cases of Article 17.1 LPH. Easements could therefore also be granted for the construction of infrastructure in the telecommunications sector in accordance with Article 9.1.c.) LPH old version. These only had to be decided in compliance with their respective special majorities (e.g. 1/3 of the votes and quotas of all owners for the construction of installations for telecommunications services). With the new version of the current article 9.1.c.) LPH and the reference to the community facilities decided in accordance with this law (without them having to be in the general interest), the discussion was finally decided in the sense of the then prevailing opinion, and even goes beyond its broadest interpretation.

Irrespective of the type of community facility in question, the owner affected by the easement can contest it, as with all other resolutions. On the basis of Article 18.1.c.) LPH, they may in particular claim that they are suffering serious disadvantages as a result of the resolution, which they are not obliged to bear
.

As can already be seen from the wording of Article 9.1.c.) LPH, the creation of the specific easement must be indispensable in order for the community facility to be created. The main arguments for a successful challenge are then derived from the interplay between the necessary indispensability of the easement on the one hand and its reasonableness for the encumbered owner on the other. If the resolution has not been contested or the challenge has been unsuccessful, the community can, as in the case of the repair work, sue for access to the special property element if the owner refuses to grant it. As Article 9.1.c.) LPH stipulates that the owner affected by the easement must be compensated accordingly, financial compensation must be made in their favor depending on the extent of the burden.

To permit access to the separate property for the purposes of the provisions set out in Article 9.1.a.) – c.) LPH

To ensure that the obligations of the owners described in Article 9.1.a.) – c.) LPH can be put into practice, Article 9.1.d.) LPH clarifies that they must grant access to the special property elements in this context.

According to prevailing case law and literature, however, the obligation to grant access should not be limited to the purposes described in Article 9.1.a.) – c.) LPH. Numerous cases are conceivable in which, for example, access to special property elements may also be required for the installation of new features in accordance with Article 17.4 LPH. The application of Article 9 LPH should therefore not be based solely on the wording, but should allow for a more generous application by following the general principles of interpretation of Article 3.1 Código Civil.

To participate in general expenses to the extent of the participation quota

Condominium law is characterized in particular by the coexistence of common property and separate property. As the common property basically serves all individual property elements or their owners, it must also be maintained by them. Article 9.1.e.) LPH therefore stipulates the obligation of each owner to contribute to the costs incurred for the appropriate maintenance of the common property to the extent of the costs specified in the (constitutive or construction) title or the separately determined participation quota, if these are not individually allocated to individual owners or special property elements. (There are expenses for which no individualization is possible from the outset, such as cleaning administration costs, electricity costs for the stairwell, etc., and those for which both individual and collective cost allocation is conceivable depending on the specific equipment or organization. These are, for example, the cases of water consumption. If there are meters for each apartment, individual billing is possible. However, if the water supply is provided by the community and there are no individual meters, individualization fails.)

Article 9.1.e.) LPH must therefore be read in close connection with Article 3 LPH. There, the allocation of a quota expressed as a percentage of the common property is prescribed for each separate property element. This quota reflects the arithmetical co-ownership share in the common elements. It is regularly used to determine the participation in the general community expenses and income. For example, if the foundation title assigns a quota of 10.5% to a separate property element, this means that the owner (or owners) of the separate property element has a 10.5% share in the common elements, i.e. the common property. This is generally also the proportionate share of the community’s expenditure and income. If, for example, the community’s expenses for the operation and maintenance of the communal elements amount to a total of EUR 1,000 per year, the owner would have to make a contribution of EUR 105.00 based on his 10.5% share in the case described above, unless other arrangements have been made. As it is legally possible to exempt individual special property elements from the obligation to contribute to certain costs (and the amount of the obligation to contribute may depend on special circumstances or agreements), the co-ownership share does not always have to be in direct proportion to the obligation to contribute. If, for example, the owners of the stores are exempt from the obligation to contribute to the operation and maintenance of the elevators, their payments may well be lower than those of the other owners despite a higher quota. Although the owners of the stores then pay relatively higher contributions on the basis of a higher share, these do not relate to all expenses and can therefore actually be lower in absolute terms than those of the other owners, who have lower quotas. In addition to this pro rata exemption from the obligation to pay contributions, a participation in expenditure (and income) can also be determined that is completely independent of the participation quota because it is based on other factors. As a rule, the exemption from the obligation to contribute to certain expenses or a distribution according to criteria other than the allocated quota is already made in the foundation title. However, the community can agree an exemption from expenses or a change to the distribution key at any time by means of a resolution. This resolution requires unanimity, as it leads to a change in the founding title or the articles of association, whereby the votes of the owners absent from the meeting are deemed to be in favor, unless they express the contrary within 30 days of notification of the result of the vote of the owners present (Article 17.8 LPH in the current version of the law, Article 17.1.4 LPH old version in force prior to June 28, 2013).

Non-payment of contributions owed

With regard to contributions to community expenses, the owners’ meeting must decide how, when and in what amount they are to be paid (Article 9.1.e.) in conjunction with 21.1 LPH). If the owner has not complied with his/her obligation to pay the contributions due, he/she shall be in default immediately, in accordance with article 1125 of the Civil Code, without further notice of default (however, the initiation of legal action requires the notification of the resolution by which the settlement of the debt was decided to the defaulting owner and debtor, in accordance with article 21.2 of the LPH).

Consequences of non-payment pursuant to Articles 15.2 and 18.2 LPH

An owner who has not met all due payment obligations to the community at the time of the opening of the meeting may participate in the meeting, but may not exercise their right to vote. Occasionally it happens that an owner has failed to pay the contributions not because he lacks the necessary financial means or has simply forgotten the payment deadline, but because he does not agree with the amount of the contributions or the way they are calculated, for whatever reason. In order to avoid having to make the payment to the community and still retain the right to vote, the law grants the possibility of a judicial challenge to the resolution on which the specific payment obligation is based, or the judicial or notarial deposit of the amount owed and due. Anyone who has a valid reason for considering the contribution levied to be unjustified is therefore not helplessly at the mercy of the payment obligation and can take the measures described, while the inactive debtor forfeits their right to vote until the debt due is settled. This prevents the community from becoming incapable of acting against the usual debtors (after all, legal action against a debtor must first be decided – which would potentially be made impossible with a conceivable majority of debtors) and defaulting debtors from being able to decide on the use of the community’s funds. In addition, the loss of voting rights creates an incentive to pay. In addition to the temporary loss of voting rights, the non-payment of the contributions due also means that the debtor can no longer challenge the resolutions passed by the owners’ meeting in court. However, as in the case of the loss of voting rights, the debtor has the option of depositing the contributions due in court in order to still be able to challenge a resolution. There is only one case in which the owner’s right of avoidance remains in force even in the case of community debts that are due but have not been deposited. This is the case if the challenge is directed against a resolution that relates to the creation or amendment of the participation quotas (see Article 18.2 LPH).

Liability for the debts of the previous owner

The purchaser of a condominium element is liable to a certain extent with the property itself for the contributions owed to the community expenses of the previous owner. This liability includes the contributions due in the year of acquisition and the three immediately preceding years (Article 9.1.e.).3 LPH). For example, if the acquisition took place in March 2014, the acquirer’s liability for the payments for which the previous owner is responsible extends to all unpaid contributions due in 2011, 2012, 2013 and 2014 up to the time of acquisition (March). In principle, the previous owner remains liable for older debts if no special agreements have been made between the previous owner and the purchaser. The transfer of the property does not therefore mean that the purchaser also assumes all debts. Article 9.1.e.) LPH stipulates that when the property is transferred by means of a notarial deed, the owner must obtain a certificate from the secretary of the community (endorsed by the president) on the debt status, which is inserted in the deed.

Three constellations are conceivable in this way:

• The certificate proves that there are no outstanding claims against the community, as there are no debts due. The purchaser then receives the property unencumbered with regard to any community contributions owed.
• The certificate results in debts of the transferring owner to the community. The acquirer may agree with the transferring owner that he will settle the debts in full or assume the debts (and to this end reduce the purchase price, for example, to compensate). However, without a special agreement between the parties, the property is only encumbered to the extent provided for in Article 9.1.e.) LPH. This means that the purchaser is liable for the payments due in the current year and the three immediately preceding years with the property itself.
• The certificate is not presented. In this case, the purchaser is liable with the property itself for the contributions due to the community in the year of acquisition and in the three preceding years.

Therefore, only if there is an express agreement between the transferring owner and the purchaser will the liability be extended beyond the current year and the three previous years. Errors made by the secretary with regard to the amount of the debt are borne by the community in the event that the debt is erroneously understated – the new owner is only liable with the property up to the amount of the declared debt.

Participation in the reserve fund

Each owner is obliged to make a contribution to the reserve fund in proportion to their share of ownership. Regardless of how the running costs, i.e. the general contributions to the common expenses, are distributed among the owners, the contribution to the reserve fund is made in proportion to the respective co-ownership share. If individual special property elements (such as business premises) are exempt from the obligation to contribute to the elevator service, for example, this exemption does not reduce the extent of the participation in the reserve fund. This is because, unlike Article 9.1.e.).1 LPH, according to which the obligation to contribute is determined by what is set out in the declaration of division or what is separately determined (lo especialmente establecido), the wording of Article 9.1.f.) LPH states that the participation in the reserve fund is to the extent of the participation quota.

With regard to the amount of the reserve fund, the law stipulates that it must be endowed with funds amounting to at least five percent of the last ordinary budget. These funds are used by the community to cover any necessary extraordinary maintenance and repair work on the community elements. Although it is not expressly stated that this must be extraordinary expenditure, this can be deduced from the meaning and purpose of the provision. Until the changes introduced by Law 8/1999 of April 6 came into force, there was no obligation to create a reserve fund in Spanish condominium law. Of course, an owners’ meeting has always been able to create such a fund even without a legal requirement. Large communities in particular, but also smaller, forward-looking ones, have done so in order to meet the need to always have the necessary funds at their disposal. All too quickly, unexpected maintenance measures or repairs can arise that exceed the volume of a community’s financial strength resulting from the regular budget. With the help of a reserve fund, sudden special allocations can be avoided, the maintenance of which often poses a major challenge for the community’s officers. Finally, an extraordinary meeting must be convened to agree the suddenly required special contribution. Individual owners may not have the necessary funds at their disposal, etc. If there is a reserve fund, such problems are reduced to a minimum. In particular, urgent and at the same time cost-intensive but unexpected repairs can often only be dealt with appropriately in this way.

Of course, the reserve fund must be fully endowed again once the use of its funds has actually become necessary. The contribution to be paid directly by the owners therefore does not cease to apply in absolute terms simply because there is a reserve fund from which the funds can be drawn. The unexpected obligation to pay contributions or costs and the associated payments are merely postponed. The main advantage is therefore that the community does not have to wait until the payment is made directly by the owners. Being able to provide the necessary funds with immediate effect is therefore the true purpose of the reserve fund. In order to serve the described purpose, the funds in the reserve fund may only be used for extraordinary maintenance measures or repairs. If part of the ordinary maintenance measures were also financed from the fund, the purpose of the fund would be undermined. The law therefore only permits one other use in addition to extraordinary maintenance and repair measures. The reserve fund can also be used either to pay an insurance policy to cover a financial loss or to cover the costs of a long-term maintenance contract. Basically, however, there is no real exception to the principle that the reserve fund may only be used to pay for extraordinary maintenance and repair work. After all, both the insurance and the maintenance contract are intended to cover the expenses associated with them. This means that they cover (at least in part) the risk for which the reserve fund is intended.

Careful treatment of the property and the other owners, and a duty to compensate them for any violations committed and damage caused

Pursuant to Article 9.1.g.) LPH, each owner is obliged to deal with his special property element in such a way that the other owners do not suffer any disadvantages. Should damage nevertheless occur as a result of their (mis)conduct, they must compensate for this. In fact, this obligation is a partial repetition of what is already set out in Article 9.1.a.), b.), c.) and d.) LPH. In close connection with the duty of care contained in Article 9.1.g.) LPH are also the prohibitions in Article 7.2 LPH, from which it is derived that the owners (and in this case also the users) may neither violate the statutes nor carry out activities that cause damage to the property or are disruptive or dangerous for the residents.

Provide the secretary with an address for the delivery of notifications

Each owner must, in accordance with Article 9.1.h.) LPH, each owner must provide the secretary of the community with an address for service within Spain. The community uses these addresses to communicate with the owners in order to send them notifications of all kinds. If an owner does not provide an address, the permitted delivery address is located in the owner’s special property element by law. In addition to summonses, requests (payment, refraining from disruptive or dangerous behavior, etc.) as well as notifications of the provisional voting results (in the case of resolutions requiring special majorities or even unanimity, the absent owner can cast their vote within 30 days) and the meeting minutes with the final resolutions of the meeting are sent to the delivery address. It is therefore in the owner’s own interest to ensure that he receives all messages from the community. Otherwise, important deadlines may expire without the owner’s actual knowledge, or, by virtue of the fictitious consent of the absent owner, in the cases of Article 17.8 LPH, the owner’s uncast vote may be counted as a positive vote. In the event that service is not possible at the address provided by the owner or, alternatively, at the address of the special property element located in the community, it shall be deemed to have been effected if the document has been posted on the community notice board for three days. If the community does not have a notice board, the document may also be posted in a clearly visible place of the community within the common property that was created for this purpose. The notice must contain information about the date on which it was posted and the reasons for this alternative service. It must also bear the signature of the secretary and the endorsement of the president.

Notification of the transfer of a special property element

If the ownership of a special property element is transferred, this must be notified in a conclusive manner in accordance with Article 9.1.i.) LPH, the Secretary must be notified in an evidential manner. If the notification does not take place (or cannot be proven), the former owner is also jointly and severally liable with the new owner for the contributions payable after the transfer. However, the former owner may demand reimbursement of the amounts paid by the new owner. In addition to the notification of the change of ownership, this unlimited payment obligation shall also cease if one of the community’s officials has become aware of the transfer by any other means or if this is obvious.

Compliance with the regulations contained in the Community statutes

The owners are also obliged to observe the regulations contained in the community statutes. In accordance with Article 5 of the LPH, the bylaws may contain rules that regulate the use and enjoyment of the common and special property. Likewise, the bylaws may contain regulations regarding the common installations and facilities, expenses, administration and management, insurance, as well as maintenance and repair measures. However, these rules have their limits where they violate legal prohibitions.

A unanimous resolution of the community of owners pursuant to Article 17.6 LPH is required to establish or amend a community statute. They are only effective vis-à-vis third parties if they have been entered in the land register or if their content was known for other reasons.

Observance of the regulations contained in the house rules

The owners are also obliged to observe the regulations contained in the house rules. In accordance with Article 6 LPH, the house rules have the task of establishing suitable rules for living together within the community. The focus here is on regulating the joint use of the common property in an appropriate manner. However, the house rules must not contradict the law or the community statutes.

The typical content of house rules includes the following regulations, for example: How, where and to what extent laundry may be hung up to dry, at what times and in what way the communal pool may be used, whether and when the front door or entrance gate to the community must be locked, etc. The house rules require a simple majority resolution in accordance with Article 17.7 LPH in order to be established or amended.

For further information on this topic and related areas, please refer to the articles dedicated to rights and prohibitions in the Spanish community of owners.