Horizontal Property Act - Part 7

Published on 21/05/2007 in Your Spanish Home

Governing Bodies of a Community

Click here for part 1 in the series of these articles.

Click here for part 2 in the series of these articles.

Click here for part 3 in the series of these articles.

Click here for part 4 in the series of these articles.

Click here for part 5 in the series of these articles.

Click here for part 6 in the series of these articles.


The President

He/ she is elected amongst all the owners, by election or, if there were no candidates, by turn.

The designation is binding. If the designated owner does not want to become the President, he needs to ask the Judge to release him from that responsibility, giving to the Court enough arguments for the exemption. 

The Judge will designate, by a simple procedure, the owner who must replace him/ her until new election.  

The Community of owners can also invoke the Judicial assistance if, for any reason, it is impossible to name a president at the General Meeting.

The President holds the legal representation of the Community, either before the Courts or in out of Courts managements, at every subject related to the Community.
 
The appointment of vice-presidents is not obligatory, in case the Community would choose to do so; this designation is made by the same procedure as the Presidents’.

The vice-president is in charge of policing for the President when during leave, absence, vacancy, etc… He also has to assist him in his duties as President according to the rules of the Community of owners.

The Secretary

The functions of the Secretary and the Administrator are carried out by the President of the Community, except  when either the Statutes or the Meeting of Owners, by majority agreement,  agree on the appointment of specific people for these positions.

Secretary or Administrator’s duties can be performed by either same or different person. These positions can be performed by an owner or by an agent.

These positions can be replaced before the end of the deadline if that is agreed by the General Meeting of owners, called in extraordinary session. 

The Administrator

The duties of the Administrator are as follows:

  • Watch over the good management of the building, its installations and services, for those purposes he is entitled to do the necessary warnings and notices to all the owners. 
  • To prepare in advance and to submit to the General Meeting the budget of foreseeable spending, and to propose the necessary means to confront them.
  • To watch out for the conservation and maintenance of the building, deciding on the urgent repairs and the means to make them, and communicating them immediately to the President or to the owners.
  • To execute those agreements adopted regarding works and to pay for them.
  • To operate, in cases, as the Secretary of the Meeting and to keep the documentation of the Community.

Owners in payment default

Owners of flats are obliged to the payment of the corresponding fees on time and according to the way that had been determined by the Meeting of owners.

If payments are not met by any/some owners, the President or the Administrator, if the General Meeting decided so, can claim the debt in legal way by presenting a lawsuit before  the Court .

Lawyer and Procurator are not legally required for this kind of lawsuits.  Nevertheless, it is advisable to use these legal professionals, and, due to the complexity of the matter,  it is almost essential to be assisted by one of these professionals, especially bearing in mind that, once the judicial proceedings are finished , the costs of their fees can be reverberated in the opposite part (it is called the “condemnation in expenses”).

The use of that proceeding needs the previous certification of the agreement of the Meeting, approving the liquidation of the debt with the Community of owners by the Secretary, with the good approval of the President, and it also requires that this agreement has been correctly notified to the affected owners.

Once the demand is presented and registered in a Court, the Judge will  require  the defendant  to  either  pay  to the plaintiff Community, in a period of  20 days time,  by depositing it in Courts, or to appear in Court and argue their positions, by an opposition writing,  stating the reasons for not paying the whole or part of the required amounts.

If the defendant does not appear in Courts or he does not oppose the lawsuit, the Judge will order the execution of all his goods with the possibility of being seized and sold by public auction for the recovery of the debt, plus interests, judicial expenses and notary expenses involved.

Even though the defendant owner presented an opposition writing against the Community’s lawsuit, the Owners can ask for a preventive seize of goods which is estimated as enough to cover the claimed amounts, plus interests and costs.           

Once the judicial proceeding is over, the Judge will impose the costs to the party who’s allegations have been totally rejected.

The condemnation to pay costs will contain the lawyer’s fees and Procurator of Tribunal’s fees of the lawyer and procurator of the winner part.

It is always convenient to have the advice of a lawyer who, once he knows the specifics of every case, will be able to advise about the convenience of starting legal actions.

Can the Horizontal Property Act be applied to developments?

The Horizontal Property Act can be applied to developments that join the following requirements:

  • To be integrated for 2 or more buildings or plots which are independent of each other, composed of apartments or premises.
  • The owners of the apartments and premises which are “horizontally divided” have inherent co-property rights on the common elements of the building.

The development owners can decide:

  • To be set up as an individual Community of Owners.
  • To be set up as a “Communities of Owners Association”. In this case, they will be submitted to the regulations of the Horizontal Property Act, with the following particularities:

The Constitutive title of the new grouped Community must be conferred by the unique owner of the complex or by the presidents of all the communities that will integrate it, previously authorized by a majority agreement of their respective meeting of owners.

The Meeting of owners is composed, except for opposite agreement, by the Presidents of the communities integrated in the group, who will be the representatives of their correspondent community at every Associations meeting.  

The adoption of agreements for which specific majorities are required, need to have in any case, the previous obtaining of that specific majority in every one of the associated Communities.

A reserved fund is not required for the Association.
 
The governing body of the Association only can decide about the elements of the building, lines, installations and common services.

Its agreements can not limit the faculties that corresponded to the governing body (General Meeting, President, Secretary, etc.) of the communities of owners integrated in the association of the communities.  

 

Written by: Maria de Castro

About the author:

Maria de Castro is a Spanish Lawyer and the Director of the Law Firm www.costaluzlawyers.es.

Costa Luz Lawyers are contract and consumer real estate law specialists covering all parts of Spain. You can contact Maria at mldecastro@costaluzlawyers.es




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