Questions and answers about separate property and common property

The book ‘Praxishandbuch Wohnungseigentumsrecht in Spanien’ (Practical Handbook on Residential Property Law in Spain), which you can purchase in bookshops, on Amazon or directly from us, covers over 230 of the most frequently asked questions and answers on Spanish residential property law. Numerous questions are devoted to the most important issues surrounding the distinction between individual ownership and common ownership, special rights of use and the possibilities of converting a common element into individual ownership. All questions have been numbered to make them easier to find and refer to.

You can get an initial overview here:

Annexes and outbuildings

Annexes or outbuildings form a legal unit with the separate property to which they belong.

Question 35: Can an annex or outbuilding be separated from the separate property?

Air conditioning systems

Air conditioning is expressly classified as a common element in Article 396 of the Código Civil. However, this is only because a communal installation is conceivable in principle. If it is installed by an individual owner, it is of course considered separate property.

Question 36: Does the installation of an air conditioning system require the approval of the community?

Antennas

The antennas are classified as common elements under Article 396 of the Código Civil. This may well be the normal case, especially in multi-storey properties. However, if the antenna was installed by a single owner for their exclusive use, it is considered separate property. Section 17.1 LPH dedicates a separate paragraph to collective telecommunications facilities and facilitates their introduction by relaxing the majority requirements for community decisions (1/3 of the votes and quotas). However, its application requires that a community installation also be carried out. This does not mean that all separately owned elements must be connected. However, it must be a collective installation.

Question 37: What majorities are required to replace an outdated communal television antenna for analogue reception with a new one for digital reception?

Question 38: Do owners have a right to the introduction of a collective television reception system?

Question 39: Can an individual system be installed if there is no collective system?

Question 40: Can satellite dishes also be installed?

Lifts

Article 396 of the Civil Code classifies lifts as common property. As a facility that typically provides access from the common elements to a large number of individually owned elements, or as an addition to the communal staircase, its classification does not pose any obvious difficulties. Space for the assumption of separate ownership would only remain if the lift serves a single separate property and connects it directly to the common property or adjacent properties or the public road, or if a lift serves several separate properties belonging to the same owner. In any case, the application of the above rules leads to the correct classification in each individual case. justify;”>Question 41: Can a lift be installed even if the necessary resolution of the owners’ meeting has been passed (or the obligation under Article 10.1.b. LPH exists), but the installation renders parts of the communal courtyard unusable and a person with exclusive rights of use is opposed to its creation?

Heating systems

A heating system can be considered either as a separately owned element or as a communal installation. This depends on whether it was installed by individual owners independently of the community or not.

Questions about the required majorities for communal heating systems are a frequent cause of interpretation difficulties and thus legal disputes. The solution arises from an essential distinction. As already derived from Article 17.3 LPH, the creation or abandonment of a communal heating system (as a communal facility of general interest) requires only a 3/5 majority of the votes and quotas of all owners, even if this necessarily entails an amendment to the articles of association or the title of incorporation. However, if the question is whether an owner is exempt from the obligation to contribute to heating costs, this requires unanimity according to prevailing opinion. In the latter case, the articles of association are amended without there being any privilege (as for creation and removal). The opposing view argues, not without reason, that it is illogical to allow a 3/5 majority to be sufficient for the creation of a heating system, but to require unanimity for exemption from the obligation to contribute.

Question 42: At what point do the central heating pipes become separate property or common property?

Question 43: Can an owner connect a new heating system in the form of underfloor heating to the existing communal heating system?

Question 44: Can an owner be exempted from the obligation to contribute to heating costs?

Question 45: Do owners of commercial premises have to contribute to heating costs if these are not equipped with radiators?

Question 46: Can an owner terminate their obligation to contribute to heating costs by removing the heating elements in their separately owned property?

Question 47: Are the meters used to determine heating consumption separate property or common property?

Question 48: How should heating costs be distributed if there are no individual meters?

Surveillance cameras

Whether a surveillance camera is considered private property or common property depends on whether it was installed by an individual owner or the community, or who owns it. Both possibilities are conceivable and may even coexist. It should be noted that, in general, the community’s surveillance camera may only capture the common elements and that of an individual owner may only capture the interior of their separately owned element.

In accordance with Article 17.3 LPH, the creation or removal of communal surveillance cameras requires a 3/5 majority of the votes and quotas of all owners, whereby the provision in Article 17.8 LPH also applies here, according to which the votes and quotas of owners who do not participate in the meeting are counted as positive votes if they do not express their opposition within a period of 30 days of being notified of the provisional result of the vote taken at the meeting. Individual authors are of the opinion that the simple majority provided for in Article 17.7 LPH would be sufficient, but also refer to the provision in Article 17.8 LPH and recommend that a 3/5 majority be achieved.

Question 49: Is the installation of surveillance cameras by third parties or the owners acceptable to the community?

Question 50: What regulations must be observed for the installation and commissioning of a surveillance camera?

Cables and pipes

With regard to cables and pipes of all kinds and their classification as special or common property, the following distinction must be made:

If the separately owned property has a facility that is tailored to it and serves only it, its pipes are also separately owned property (e.g. individual gas heating systems). In the case of a communal facility, the pipes and tubes serving several owners are jointly owned property until the installation branches off and is used only by a single separately owned property. (For example, water and sewage pipes are common property as long as they serve several apartments. The part of the system that only concerns the supply and disposal of one apartment is considered separate property). If the pipes and conduits are part of a communal facility that is not subject to individual use (e.g. communal swimming pool), the entire installation is considered common property. Due to the identical circumstances, reference is made here to the additional explanations in the questions and answers relating to heating systems.

Question 51: Can an installation that is separately owned be connected to the pipes of a communal facility?

Chimneys and flues

If the chimney serves several separately owned elements, it can be assumed to be jointly owned. Otherwise, it is usually separately owned.

Question 52: Under what conditions may the chimney be closed off?

Question 53: What majority is required to install an individual smoke vent?

Question 54: What can be done about a disruptive smoke vent that is separately owned?

Roofs

In accordance with Article 396 of the Código Civil, the roof is considered a common element, at least in multi-storey residential buildings, unless otherwise specified in the title deed or the articles of association. In an urbanisation with detached single-family houses, the roofs will be classified in exactly the opposite way. Here, the roof is considered separate property unless otherwise specified in the deed of division or the articles of association. Even if classified as common property, the roof may have a sole user who, by virtue of the deed of foundation, the articles of association or a unanimous resolution, is the only person authorised to use the roof for their own purposes. This is often the case with an attic apartment or a penthouse (ático).

Question 55: Are the roofs also common property in the case of terraced houses?

Question 56: What majorities are required to rent out the communal roof?

Roof trusses, cellars and other storage spaces

The roof truss, basement and storage spaces will be dealt with together here, as they are regularly used in the same or a similar way and pose comparable problems.

As in the case of garages or parking spaces, several constellations are conceivable with regard to the legal classification of these elements:

• They may have been subdivided and configured as a kind of individualised annex or ancillary room to the respective separate property, so that they legally form a single unit with it. In this case, they are ancillary rooms or ancillary buildings belonging exclusively to a specific separate property. Example: Separate basement rooms that belong to specific flats in accordance with the declaration of division.
• They may have been divided into independent parts so that they each constitute a completely independent element of special property. In this way, they may also belong to owners who do not otherwise hold any other property in the community. This constitutes simple, independent separate property. Example: Separate basement rooms that are detached from other separate property and constitute their own separate property element.
  

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• Without having been divided, they can form a single separate property element as a closed unit. This separate property may belong to one or more owners, who in turn may or may not hold further separate property elements. This is then also considered ordinary separate property. Example: The entire basement forms a single unit and is used by its owners as a storage facility.
• They can serve as joint property in their entirety to the owners of the separately owned elements or to the community. As mentioned above, this would then be joint property. Example: The basement rooms can be used in their entirety by all owners of the community or for community purposes.
• They may have been divided so that part is common property and part is separately owned property (or an ancillary room thereof). In such a case, both separately owned property and common property exist, which is why a distinction must be made between the two. If necessary, they can form their own (separate from the rest of the property) residential property ownership relationship and thus an independent owners’ association. Here is an example: The basement comprises a communal part, which is used by all members of the community, and another part, which has been divided into one or more sections, which belongs only to the respective owner of this separately owned element.

  Question 57: Who is entitled to use the communal roof structure if access is only possible via a separately owned element?

  Question 58: How are basement rooms classified (separate property or common property) if they are not mentioned in the declaration of division?

  Question 59: What majorities are required if a communal basement is to be divided into individual basement rooms (which in turn are to become separately owned elements)?

  Stairwells and corridors

  Question 60: What is the legal classification of stairwells and corridors?

  (Inner) courtyards

  

  Depending on the specifications made in the declaration of division or on the basis of a unanimous decision by the owners’ meeting, the courtyard or inner courtyard can be either separately owned or jointly owned (with or without special rights of use).

  In order to provide daylight to the interior rooms or flats, inner courtyards are often planned, which are only accessible to the residents of a lower floor. This space is quickly used for storage or even covered to create an additional enclosed space.

  Classifying the inner courtyard as special or common property (with or without special rights of use) and its more or less intensive use give rise to a whole series of conceivable problems, which is why a large proportion of neighbourhood disputes arise from the way individual owners deal with and use the inner courtyard.

  Question 61: Can the holder of a special right of use over the courtyard cover it with a roof?

  Question 62: Can the holder of a special right of use over the courtyard build a swimming pool in it?

  Question 63: Is the courtyard classified as separate property or common property if it is not mentioned in the declaration of division?

  Question 64: Can the roofing of the inner courtyard be covered by tacit consent of the owners’ association?

  Question 65: Can the holder of a special right of use of an inner courtyard use it as storage space?

  The building structure

  

  Question 66: What happens if an owner removes a column because it interferes with their separately owned property?

  The façade

  

  Question 67: How is the facade classified?

  Question 68: Can an owner enclose the terrace with a wall facing the outside?

  Question 69: What majorities are required to replace the community blinds?

  Question 70: What majority is required to seal off or enclose terraces or balconies from the outside with glass panes, windows or other building materials?

  Question 71: What majority is required to paint the façade (in a different colour)?

  Question 72: Is the consent of the community required to install an alarm system with alarm signals and warning signs on the façade?

  Garages and parking spaces

  

  Question 73: What is the legal classification of garages and parking spaces?

  Question 74: Can multiple vehicles be parked in one parking space?

  Question 75: Can a parking space that is separately owned be used as storage space?

  Question 76: Can a vehicle protrude beyond the boundaries of the parking space?

  Question 77: Can a single parking space that is separately owned be surrounded by a wall?

  Question 78: Can a garage be converted into living space or business premises?

  Gardens and green spaces

  

  Question 79: What majority is required to convert the communal garden into a communal car park?

  Question 80: Can the person with exclusive rights to use part of the communal garden fence it off?

  Question 81: Can a garden shed or tool shed be erected in a privately owned garden without the permission of the owners’ meeting?

  Signs

  Question 82: What is the legal classification of signs?

  Question 83: Can signs be attached to the façade?

  Walls

  Question 84: What is the legal classification of walls?

  Question 85: Do the owners of two separate elements of special property require the approval of the owners’ meeting in order to connect them by breaking through a wall?

  Question 86: Can an owner scrape away part of the partition walls between him and his neighbours or the outer wall in order to gain space?

  The swimming pool

  

  Question 87: What majority is required to abolish the communal pool?

  Question 88: What majorities are required to build a communal pool?

  Question 89: Can the owner of a parking space use the communal pool if they do not own any other special property (e.g. apartment)?

  Portal, entrance or reception area, caretaker services and caretaker’s apartment

  

  Question 90: What is the meaning of the terms portal, entrance and reception area, caretaker services and caretaker’s apartment?

  Question 91: Does exemption from contributing to the costs of the entrance area (portal) also lead to exemption from the costs of caretaker services (servicio de portería)?

  Question 92: What majority is required to discontinue the reception or caretaker service?

  Question 93: What majority is required to sell the communal caretaker’s apartment?

  Question 94: What majority is required to rent out the caretaker’s apartment?

  Doors and windows

  Question 95: Can bars be installed on a window without the permission of the owners’ meeting?

  Question 96: Can old windows be replaced with new ones with a different appearance, i.e. a different aesthetic, without the permission of the owners’ meeting?

  Question 97: Can the glass panes of the windows be replaced with different ones without the permission of the owners’ meeting?

  Land and property

  In the absence of specific provisions to the contrary (declaration of division, unanimous resolution), the land on which the property is located constitutes common property pursuant to Article 396 of the Civil Code.

  However, not only the undeveloped area or the area built on with communal facilities is classified as common property, but also the part built on by the separately owned elements.

  Question 98: Can the owner of a separately owned element located on the ground floor build a basement without the permission of the owners’ meeting?

  Question 99: Can the owners of a detached house or terraced house located in an urban development build a basement without the permission of the owners’ meeting?

  Terraces and balconies

  According to Article 396 of the Código Civil, terraces and balconies are considered common property. Any deviation from this rule can only be determined by a provision to the contrary in the declaration of division or by unanimous resolution.

  Question 100: Does the installation of movable privacy screens on a terrace or balcony require the approval of the owners’ meeting?

  The possibility of building above the property

  Similar to the land itself, the area above the property and, consequently, the possibility of building additional floors above it, is also considered common property unless special provisions have been made. Vicente Domingo explains this principle very clearly with reference to the extremely apt Latin phrase usque ad sidera et usque ad inferos, which means ‘from heaven to hell’ and is already widely used by practitioners of Roman law. The (joint) ownership therefore extends vertically (and in relation to the land) to both the area below and the area above.

  The builder will often have granted himself a right to the vuelo and thus to the space above the property in the declaration of division or community statutes. This gives him the option of carrying out subsequent development and acquiring separate ownership of this.

  Such clauses are not invalid or contestable from the outset. However, they often lack practical significance. Local building regulations regularly do not permit more intensive development, or the existing buildings do not allow for superstructures due to their structure and statics.

  In addition, in order to implement such a superstructure, the quotas of the community must also be changed so that, despite new elements of separate ownership, all parties receive a quota which together make up the one hundred percent required by Article 3.2 LPH.

  Until 28 June 2013, this required a unanimous resolution of the owners’ meeting due to the old version of the Spanish Condominium Act. Since the reform, depending on the interpretation of the current Article 10.3.b.) LPH, a corresponding change can already be made with a 3/5 majority of votes and quotas of all owners. In this context, reference should be made to the view held by Martinez Ortega that, since the 2013 reform, it has been questionable how to deal with a general permission contained in the articles of association. Permits entered in the land register prior to the reform can be assumed to remain valid. However, since the last revision of the Spanish Condominium Act and the reference in Article 10.3.b.) LPH, there are legitimate doubts as to whether the requirement of a resolution supported by 3/5 of the votes and quotas of all owners can be disregarded.

  Question 101: Can the owners of a detached house or terraced house located in an urbanisation build on it without the permission of the owners’ meeting?

  Question 102: Do the owners have a claim for damages against the community for loss of use in the event of damage caused by defective common elements?