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12 Aug 2009 01:56 by 1962 Star rating in Iznalloz. 182 posts Send private message

Hi,  re. previous post I tried to edit to include few permanent residents who haven't paid for reasons unknown, but edit did not work.

Kathy.

 



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12 Aug 2009 08:56 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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Kathy 1962

Regarding commonhold liabilities section 22 of the Act provides:

(1) The commonhold shall be liable for all its assets for any debts to third parties. In addition, the creditor may claim from every owner who was party to the corresponding process, for the  payment of his/her percentage of the amount left unsatisfied, having served a request for payment on such owners.

 

(2) Any owner may oppose execution if he/she accredits that all debts due to the commonhold are fully settled at the moment the request for payment mentioned in the preceding subsection.

 

 The ruling of the Court of Appeal in Alicante 20-10-2004 dealt with the construction of section 22, holding that although a commonhold has no strict legal personality it may be a debtor in two circumstances:

 

  1. For usual services such gas or electricity and for repairs or maintenance.
  2. For damages caused to third party or even to commonholders.( Section 1.907  of the Civil Code)

In order to protect the owners, the law provides that any action in tort or contract arising out of acts or omissions of the commonhold as a whole must be brought against the commonhold association and not against the individual commonholders. By not allowing the unit-holders to be named, each is responsible only for the portion of the judgement that represents their allocated share. This eliminates joint and several liability; a situation where one commonholder can be liable for the entire judgement.

The law also provides that a unit-holder is not precluded from bringing an action in tort or contract against the commonhold solely because he or she is an owner.

 

Where a third party is declared creditor of a commonhold, at trial, the judge through an attachment execution shall seek the assets of the commonhold according to a specific order. (Under r. 592 of CPR )

 

  1. Money from bank accounts of the commonhold as well as the reserve fund.
  2. Future monies (service charges) deposited by commonholders in those accounts. (In accordance with r. 606 (1) of the CPR there are some unattachable credits such as those for the lifts maintenance, electricity from lifts and common halls stairs) 

If it is impossible to recover the debt via the usual procedures outlined above (That means that the creditor has used up all the commonhold assets) the creditor can seek to seize commonholders’ private assets.  It is very difficult to do so however because the creditor has been granted with a future seizure on the future commonholders’ payments.

In order to achieve any attachment on private commonholders’ assets it would be mandatory to sue not only the commonhold but also all the commonholders in the same lawsuit   (SC 13-02-2001 CA ruling in Pontevedra 16-07-2002 CA ruling in Barcelona 26-07-2007 CA ruling in Seville 11-02-2005 ). The CA ruling in Valencia 24-05-2004 went beyond this and required previous debtor’s default’s notice to be made to each commonholder by the creditor.

Other Courts (CA ruling in Barcelona 22-05-2002 and CA ruling in Zaragoza 12-05-2006) have taken a more flexible approach, considering no necessary the requirement of suing every commonholder.

This section is brief and not illuminating. It seems that it is conceived for a particular supplier who has been contracted for a specific purpose. Previously the Owners’ Committee has to have passed a resolution approving carrying out that service so there was a special levy in order to cover that non-general expense.

Should every commonholder has paid there will be no trouble for the contractor, but if any of the commonholders do not pay the others who do pay may oppose execution.

In case of seizure of any commonholder’s private assets, the amount attached shall be only for the part of the total debt relevant to the individual owner. (CA ruling in Zaragoza 02-11-2005 and CA ruling in Navarra 10-10-2001

 

If any of the debtors pays upon request, he/she shall bear the corresponding proportion of the court costs incurred up to the point at which he makes the offer of payment.

 

Some of the doctrine permits the debtor to claim and seize some or all of the common parts (only common parts by its nature) of the commonhold. Firstly, the Owners’ Committee should agree unanimously to disjoin some common element that is non-essential for its survival, for instance a tennis court.


 


 



This message was last edited by spanishsolicitor on 12/08/2009.

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12 Aug 2009 12:21 by 1962 Star rating in Iznalloz. 182 posts Send private message

"Some of the doctrine permits the debtor to claim and seize"

Hi spanishSolicitor,

Thank you for your response it is very helpful, but I am puzzled by the last paragraph beginning with the above words.  Is it that if the debtor is of the opinion that the fees are too high because of unnecessary facilities within the community he is able to withhold payment because of this as a protest.

Regards kathy 



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12 Aug 2009 13:03 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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Sorry Kat

It's my fault. It is not the debtor, it is the creditor.

 

Some of the doctrine permits the creditor......

 



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12 Aug 2009 13:56 by 1962 Star rating in Iznalloz. 182 posts Send private message

Thank you,  S S

Kathy



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12 Aug 2009 19:52 by Roberto Star rating in Torremolinos. 4536 posts Send private message

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1962 - the idea of owners "chipping in" and doing a bit of gardening, for example, is a nice one, but in practice is unlikely to ever work. Those that do offer their services, will naturally expect others to follow suit, but when nobody does, they will become resentful, since their efforts have benefitted everyone, including those who won't lift a finger to help. When our community voted to postpone painting the building, a few owners decided to paint outside their own front doors meanwhile. Some who had voted in favour of painting the entire building, and some who voted against, due to cost, were annoyed because now their properties looked worse! They were free to paint their areas too, but didn't want to be bothered. They either wanted to fork out and have the whole building done, or have the whole place stay scruffy looking. And those who did paint, didn't see why they should buy paint and use their time to paint outside other owner's doors. Naturally. No, this kind of approach can only work on an all or nothing basis.



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12 Aug 2009 20:03 by Karensun Star rating in Orihuela Costa. 1474 posts Send private message

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Roberto's right.........................believe me, it's not for the want of trying to get people involved with the running of thier own Urb/comm. We have had several attempts at 'work parties' having put notices up for volunteers and it is always the same people who turn up.

Mind you, as the majority of our owners do not live here then this is always going to be a problem. But there has not been , so far, a response from all those who do live here.

So there are two alternatives, it seems, pay someone to do the jobs, or get the Presidente to do it ( which is what usually happens !! )



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