The question of the legal personality of the community
A much-discussed topic is the question of the community’s own legal personality. The Spanish Condominium Act contains several passages which suggest that the owners’ association has its own legal personality.
According to Article 13.1 LPH, there are governing bodies, the president of the owners’ association is its legal representative (Article 13.3 LPH), the association is liable for its debts (Article 22 LPH), it is the owner of the reserve fund (Article 9.1.f. LPH), some associations have their own staff, and therefore act as employers, paying wages and social security contributions in this context. The community may be obliged to file tax returns and pay taxes if tradespeople have been hired, and may also generate income, for example by renting out advertising space. Article 9.1.e.) LPH refers in its second paragraph to claims existing in favour of the community, and Article 9.1.c.) LPH establishes the community’s right of access to special property, thereby imposing a kind of general easement on the individual owner. So if the community is granted certain rights, would that not also imply that it has its own legal personality?
The Tribunal Supremo has nevertheless repeatedly rejected such an assumption. The Spanish Constitutional Court has done the same. Article 35 of the Civil Code describes the cases in which the existence of a legal entity is to be assumed. According to this, legal personality can only be derived from a corresponding law that grants it. In the absence of such a law, legal personality must also be denied.
[pullquote]Despite its lack of legal personality, the community has legal capacity.[/pullquote]
Nevertheless, this does not mean that the owners’ association cannot have legal capacity. Section 6.5 LEC expressly states that even entities without legal personality have legal capacity if a law grants them such legal capacity. However, the lack of legal capacity is significant in another respect. For example, the community has no claim to compensation if intangible damage has been caused by prohibited actions of individual owners or residents. The community also cannot acquire ownership by adverse possession due to its lack of legal personality.
