Horizontal Property Law - can a community/individual opt out?

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15 Aug 2009 00:00 by schuey Star rating in Marinello. 5 posts Send private message

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I am living in an apartment which is not gated, only ground and upper floor apartment build. The build is is configured as seperate streets and in the middle of a village. It has a swimming pool for use by  the 'community/apartment' owners but no grounds/grassed areas to maintain.

1. Why does it have to be a community under the Horizontal Property Law?

2. Can an individual opt out?

3. Can the majority decide they dont want a community?

Any legal information appreciated. 



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15 Aug 2009 15:03 by Karensun Star rating in Orihuela Costa. 1476 posts Send private message

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Maria...................do you have an answer.................I would be interested to hear it!!

I did not think the HLP was an 'option'....thought it was THE Law.



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15 Aug 2009 17:01 by Roberto Star rating in Torremolinos. 3874 posts Send private message

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If there are less than 4 properties, there does not ned to be a community under the Horizontal Law. Otherwise, there has to be some sort of community. If a community has already been registered then I think only a unanimous vote by the owners would be able to terminate it, and only if the entire property is re-registered in some other way, such as privately owned by one individual, or some other form of co-ownership. This is one for the lawyers (there's some nice legalese towards the end of the Horizontal law about it).

If you have a pool, you will surely need some form of community in order to maintain and pay for it? What about communal building insurance? Repairs to the roof; painting the building; etc.etc?



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15 Aug 2009 17:03 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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schuey

Section 2 of the Horizontal Property Law (49/1960) Act provides for its scope

This Act shall apply to:

a) Commonhold land formed in accordance with the provisions of section 5 (Communities which have commonhold community statement ‘Escritura de obra nueva y division horizontal’)

b) Commonhold land fulfilling the requirements established in section 396 of the Civil Code and for which no commonhold community statement has been filed. In any case, for matters relating to the legal system of ownership of private units and common parts, and for those regarding reciprocal rights and duties of commonholders, these commonholds shall be regulated by the provisions of this Act.

Where there are common parts (even just a swimming pool) owned by more than one individual such as your swimming pool the Act shall be applied and no owner can opt out

Section 23 of the Act 49/1960 provides for the termination

The commonhold shall terminate:

(1) By the destruction of the building.
Notwithstanding any covenant to the contrary, destruction shall be deemed to have occurred when the cost of rebuilding shall exceed fifty percent of the value of the property at the time the event occurs; unless the excess of the aforesaid cost is covered by insurance.

(2) By conversion to ordinary ownership or co-ownership.

Commonholders may choose to terminate their community and bring the commonhold to an end. They may choose to do so for whatever reason provided that unanimous consent is obtained.
Voluntary liquidation is a way of collapsing the commonhold back into ‘ordinary ownership or co-ownership’ regulated by section 392 onwards of the Civil Code.
A commonhold also terminates where all the units become owned by one proprietor, or where all common parts vanish. In the latter case section 392 onwards of the Civil Code shall not apply because there is no co-ownership

 



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15 Aug 2009 17:12 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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Roberto
 
Section 13 (8) of the Act provides
 
 Where the number of owners in a building does not exceed four, they may opt for the administration system provided for in section 398 of the Civil Code if so prescribed by the Articles.
 
S. 398 of the Civil Code provides
 
 ‘For the administration and better enjoyment of the co-ownership it shall be compulsory the decisions of the owners’ majority.
It shall be deemed majority when the decision has been adopted by the co-owners representing the majority of the interests that constitute the object of the co-ownership
If there is no majority or the decision is seriously detrimental to the interested parties in the common thing, judge shall provide, at the request of a party, as appropriate, even the appointment of an administrator’
 
Subsection (8) provides a more straightforward system of administration for those commonholds with no more than four units. In order to opt for that system the Articles must provide expressly for this option.
In commonholds subject to that special regime, provisions provided in the Act relating to majorities or governing bodies shall not be applied, for instance any owner could represent the commonhold. Other provisions of the Act such as those related to notices or book of minutes may be applied supplementary to these commonholds.
 


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15 Aug 2009 21:37 by schuey Star rating in Marinello. 5 posts Send private message

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Thank you Spanishsolicitor & Roberto
These excellent answers/information give food for thought.

The ONLY common part of our community, as I see it is the swimming pool, the majority do not seem to care whether it is there or not. But from what you are saying Spanishsolicitor the vote to terminate the commonhod has to be by "unanimous consent". Highly unlikley that this would happen - maybe a majority? therefore the minority would keep the commonhold going?

The apartments are similar to 'terrace' build in the UK Roberto, the roof is the upstairs apartments sun terrace, surely their responsibility.to maintain? as the front terrace is the responsibility of the ground floor owner. Painting/maintaining the outside fabric of each individual apartment the same? 

The swimming pool? concrete and carpark spring to mind!!!!!!!!!!!!

I understand the need for such an Act if it is a multi storey building, or a gated community with extensive grounds, But struggle with the imposition in this case. 

 


 



This message was last edited by schuey on 15/08/2009.

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