We bought our property off-plan in 2004, located in a very nice urbanisation near Pilar de la Horadada, Costa Blanca, and took possession of it in 2006 more or less on schedule. Our community consists of just 20 properties - all semi detached, with communal pool and garden area - hence our community fees are quite high.
Each property has a ground floor, first floor and internal stairwell leading to quite a large roof solarium extending to the rear and to the front building line of each property.
The community was established by the builder within a couple of months of completion of the properties and a president, vice-president, committee and administrator duly appointed.
However, before the community was properly established, two owners decided that they would construct an enclosed 'conservatory' structure, accessible from the solarium stairwell door, one extending towards the front of the property and the other extending rearwards (on separate semi- detached pairs). Planning consent was not sought, but was approved retrospectively.
It has to be said that these construction definitely impair the views from neighbouring properties, and this lead to certain owners protesting the presence of these constructions, once the community had been formed. To cut a long story short, at the first community AGM, a motion was put forward to decide if these constructions should be allowed to stay, or whether they should be taken down, the outcome being that they would be allowed to stay, but any other such construction would need approval from the community, which, given the heated debate would almost certainly not be granted.
Some owners protested that this decision was unfair to anyone else wanting to add an identical construction and hence we would have a situation whereby the two existing owners were treated differently and their properties enhanced.
So now we come to our problem - because the properties are south facing, we get the sun all day long, which, in the summer months render the solarium all but unusable which is a pity because the views are fantastic.
In June this year, we decided to put a sliding sun awning on the front solarium to provide us with some shade, this type of awning needing a fixed framework, a conventional wind-out awning was not possible given the required area of coverage, due to dimensional and fixation constraints. Our sun awning was positioned on the solarium such that its frame did not extend beyond our attached neighbours solarium stairwell vestibule, hence adjoining neighbours would experience no loss of view.
Shortly after the framework was completed, we were approached by an irate committee member, saying that he was going to make a formal complaint to the president. It is true that we did not seek community permission, because the framework is not an enclosed structure, neither did it impact other owners views. We did get planning consent, although we were told that this was not necessary for this type of fixation given the huge numbers of sun awnings in Spain! It also needs to be said that other modifications to the properties have been made without community approval.
I due course, the president held a committee meeting and the outcome was a document stating that the community would be taking legal action to enforce us to remove the awning - no reasons were given, neither was the exact voting resolution(s) disclosed to us.
We pondered what our response would be to this somewhat unexpected situation, and realised that even if we had gone to the community for permission it would most likely have been rejected.
We arranged a meeting with the Administrator, to gain an understanding of where we stood with respect to the Horizontal Property Law. As many will know, the fact of having planning permission does not imply that the community can't take an opposing view as they did in our case. We challenged the administrator by asking how many sun awnings he thought existed in Spain and why we could not have one at our property - a 3D sketch was provided as a visual aid. We were told that there was 99.9% probability that the community would loose if the matter went to court and, indeed, that it was highly probable that it would be thrown out prior to being heard in Court. Additionally, we were told that the presence of the two existing roof conservatories would also be called into question. The Administrator also said that they would not support such a course of action.
Armed with this information, and prior to a decision not to remove the awning, we had a meeting with our own Spanish lawyer who totally concurred with the Administrator's advice. Furthermore, we were told that it would be impossible for a community of just 20 properties to afford the potential costs of bringing such an action, taking into account the high risk of failure and the financial impact on the community. We were also advised that if the president decided to pursue the action against all legal and practical advice that it was possible for the community to sue the president for recovery of incurred costs, (we subsequently learnt that many community presidents are advised to take out indemnity insurance to cover such an event).
We had a further meeting with the president, pointing out the advice we had received, but he left still determined that the committee would stand by their decision.
Nothing was heard for nearly 3 weeks until we had a request from the president and vice-president seeking a further meeting with us. At this meeting, we were told that the proposed action would not now be proceeded with and that the committee would accept the awning. This represented a 'volte-face' by the committee, presumably on advice received from the Administrator and this decision was later formalised in writing by the president to the community.
So what are the issues for the community arising from this matter and what are the lessons learned?
Firstly it is clear that, for our small community, the reality is that the committee has little power to stop owners modifying their properties. The issue for owners is whether to submit requests for community approval with the risk of being turned down, or just proceeding with their projects and facing community angst. In our community, the question of fairness of treatment presents a fundamental issue for future owners wishing to erect a solarium conservatory, as does the problem arising from owners who may wish to construct unacceptably large constructions that impact greatly on neighbouring properties.
In conclusion, it would seem that the Horizontal Property Law, whilst appearing to offer community safeguards, is in many ways deeply flawed when it comes to promoting community cohesion.
Written by: Rodney Farmer
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