Law 49/1960, of July 21, on horizontal property.
Head of state
«BOE» no. 176, of July 23, 1960 Reference: BOE-A-1960-10906
Last modified: October 06, 2021
If in general terms any legal system cannot be conceived or established behind the demands of the social reality to which it is intended, all the more so when it deals with an institution that, like horizontal property, has acquired, especially in recent years, such a thriving vitality, despite not finding more normative support than the openly insufficient one represented by article three hundred and ninety-six of the Civil Code. The present law intends, therefore, to follow the social reality of the facts. But not in the simple sense of turning any data obtained from practice into a norm, but with a broader and deeper scope. On the one hand, due to the future dimension inherent in the legal system, that prevents understanding it as a mere sanction of what happens today and forces the forecast of what can happen. And on the other hand, because although the starting point and the immediate destination of the norms is to govern human relations, for which its adaptation to the concrete and historical demands and contingencies of life is very important, we must not forget either that its ultimate purpose, especially when positive law is conceived as a function of natural law, is to achieve an order of coexistence presided over by the idea of justice, which, as a moral virtue, overcomes both the reality of the facts and the determinations of the legislator, which must always be limited and guided by it.
There is a basic social fact that in modern times has greatly influenced the planning of urban property. It manifests itself through a constant factor, which is the insurmountable need for buildings, both for the life of the person and the family and for the development of fundamental activities, constituted by commerce, industry and, in general, exercises of the professions. Together with this factor, which is constant in the sense of being connatural to every system of life and coexistence within an elementary civilization, today there is offered, caused by very diverse determinations, another factor that is externalized in very pronounced terms, and it is the one represented by the difficulties involved in the acquisition, availability and enjoyment of habitable premises. The action of the State has considered and attended to this real situation in three spheres, although diverse, very directly related: in the field of construction, promoting it by virtue of indirect measures and even, on occasions, directly confronting the company; in the sphere of leasing, through frequently renewed legislation, which restricts the autonomous power of the will in order to ensure permanence in the enjoyment of homes and business premises in economic conditions subject to a system of intervention and revision, and in the sphere of property, mainly by virtue of the so-called horizontal property, which projects this ownership over certain spaces of the building. The essential raison d'être of the horizontal property regime rests on the purpose of achieving access to urban property through a capital investment that, Being able to be limited to the space and essential elements to attend to one's own needs, it is less numerous and, therefore, more affordable to all and the only one possible for large sectors of people. This being so, the horizontal property regime not only needs to be recognized, but also requires that it be encouraged and channeled, providing it with a complete and effective management. And even more so if it is observed that, on the other hand, while the current legislative provisions on urban leases do not go beyond being occasional remedies, which resolve the conflict of interest in an imperfect way, since the strengthening of the rental institution is achieved imposing on the property a burden that it can hardly bear; instead, combining the measures aimed at increasing construction with a well-organized horizontal property regime, the housing problem and those related to it are addressed on a more appropriate level, which allows stable solutions; and this, in the long run, will redound to the advantage of the rental system itself, which may, without the pressure of pressing demands, liberalize itself and normally fulfill its socio-economic function.
The law represents, more than a reform of the current legality, the "ex
novo”, in a complete way, of the property by flats. It is carried out through a law of general character, in the sense of being applicable to the entire national territory. Article three hundred and ninety-six of the Civil Code, as occurs in similar cases, collects the essential notes of this property regime and, otherwise, is reduced to a reference rule. The general nature of the law is advised, above all, for the reason of legislative policy derived from the fact that the need it serves is manifested equally throughout the territory; but a reason of legislative technique has also been taken into account, such as that the provisions in which it is translated, without descending to the regulations, are sometimes of a circumstantial specificity that exceeds the tonic of a Civil Code.
Horizontal property made its irruption in legal systems as a mode of community property. The progressive development of the institution has mainly tended to underline the profiles that make it independent from the community. The modification that the Law of October 26, 1939 introduced in the text of article three hundred and ninety-six of the Civil Code already meant an advance in that sense, since it recognized the exclusive or singular property of the flat or premises, leaving the community, as an accessory , circumscribed to what has been called common elements. The law –which collects the material prepared with consideration and care by the Code Commission–, going one step further, aims to maximize the individualization of the property from the point of view of the object. To this end, to this object of the relationship, constituted by the apartment or premises, the property itself is incorporated, your belongings and services. While on the floor «stricto sensu», or space, delimited and of independent use, the use and enjoyment are exclusive, on the «property», building, belongings and services – abstraction made of the particular spaces – such uses and enjoyment must be be naturally shared; but one and the other rights, although different in their scope, are considered inseparably united, a unity that they also maintain with respect to the power of disposition. Based on the same idea, the coefficient or quota is regulated, which is no longer the participation in what was previously called common elements, but expresses, actively and also passively, as a module for loads, the proportional value of the floor and how much it is considered united, in the whole property, which, in this individualizing purpose there is no need to see a dogmatic concern and much least the consecration of an ideology of individualistic sign. It is about not forgetting the aforementioned social function that this institution fulfils, understanding that the design of simplifying and facilitating the horizontal property regime is thus carried out in a more satisfactory way. With the distancing from the community of property system, the express elimination of the rights of first refusal and redemption, recognized, with certain peculiarities, in the current wording of the aforementioned article three hundred and ninety-six, is not only consistent, but reassuring. Now, in this case, too, it has not been this sole technical consideration that has guided the law.
Reason for special study has been what concerns the constitution of the regime of the horizontal property and the determination of the set of duties and rights that comprise it. Until now, and this has a historical justification, this matter has been delivered almost entirely, in the absence of legal regulations, to private autonomy reflected in the Statutes. These, frequently, were not the result of the free reciprocal determinations of the contracting parties, but were usually dictated, subject to certain types generalized by practice, by the promoter of the construction company, limiting themselves to giving their adhesion to the people who entered the horizontal property regime. The law provides a regulation that, on the one hand, is sufficient in itself – with the exceptions left to private initiative – to constitute, in essence, the legal system that presides over and governs this kind of relationship, and, on the other hand, it admits that, by the will, certain rights and duties are specified, completed and even modified, provided that the rules of necessary law, clearly deducible from the same terms of the law, are not contravened. Hence, the formulation of Statutes will not be essential, although they may fulfil the function of developing the legal order and adapting it to the specific circumstances of the various cases and situations.
The system of rights and duties within horizontal property appears structured based on the interests at stake.
The rights of enjoyment tend to attribute to the owner the maximum possibilities of use, with the limit represented both by the concurrence of the rights of the same class of others and by the general interest, which is embodied in the conservation of the building and in the subsistence of the horizontal property regime, which requires a material and objective basis. For the same reason, closely linked to the rights of enjoyment appear duties of the same nature. Attempts have been made to configure them with criteria inspired by neighborhood relations, trying to dictate rules aimed at ensuring that the exercise of one's own right does not lead to the detriment of others or to the detriment of the whole, in order to establish the bases of normal coexistence. and peaceful.
In addition to regulating the rights and duties corresponding to enjoyment, the law deals
of those others that refer to the economic disbursements to which the owners have to deal jointly, either because they derive from the facilities and services of a general nature, or because they constitute charges or taxes that affect the entire building. The basic criterion taken into account to determine the participation of each one in the disbursement to be made is the expressed quota or coefficient assigned to the floor or premises, taking care to mean that the non-use of the expense-generating service does not exempt from the corresponding obligation.
One of the most important novelties contained in the law is to invigorate in everything possible the binding force of the duties imposed on the owners, as well as for what concerns the enjoyment of the apartment, as well as for what refers to the payment of expenses. Through the application of the general regulations in force in the matter, the breach of the obligations generates the action directed to judicially demand its fulfilment, either in a specific way, that is, imposing through coercion what has not been voluntarily observed, or well by virtue of the pertinent indemnity. But this normal sanction for noncompliance may not be sufficiently effective in cases such as those considered here, and this for various reasons: one is that failure to comply with duty brings extremely disturbing repercussions for large groups of people, while hindering the functioning of the horizontal property regime; Another reason is that, in relation to the duties of enjoyment, the judicial imposition of specific compliance is practically impossible due to the negative nature of the obligation, and compensation does not cover the purpose of harmonizing coexistence. For this reason, the possibility of judicial deprivation of the enjoyment of the apartment or premises is foreseen when there are exhaustively indicated circumstances, and on the other hand, the contribution to common expenses is ensured with a real affectation of the apartment or premises to the payment of this credit considered preferential.
The concurrence of a group of people in the ownership of rights that, without despite their substantial individualization, fall on fractions of the same building and give rise to relationships of interdependence that affect the respective owners, it has made the creation of management and administration bodies essential in practice. The law, which at all times has wanted to be open to the teachings of experience, has taken it very especially into account in this matter. And the result of it, as well as the careful consideration of the various problems, has been to normally entrust the proper functioning of the horizontal property regime to three bodies: the Board, its President and the Administrator. The Board, made up of all the holders, has the duties of a collective governing body, it must meet mandatory once a year, and for the adoption of valid agreements, as a general rule, the favourable vote of both the numerical or personal majority and the economic majority is required, except when the importance of the matter requires unanimity, or when, on the contrary, due to the relative importance of that, and so that the simple passivity of the owners does not hinder the functioning of the institution, the simple majority of the attendees is sufficient. The position of President, who must be elected from within the Board, implicitly implies the representation of all the holders in court and outside of it, with which the delicate problem of legitimacy that has been taking place is resolved. And, finally, the Administrator, who must be appointed by the Board and is removable, whether or not he is a member of it, must always act in dependence on it,
On the other hand, this has been given some flexibility so that the number of these people in charge of representation and management is greater or less depending on the importance and need of the community.
Finally, it should be pointed out that the economy of the established system has interesting repercussions insofar as it affects the Property Registry and requires a brief reform of the mortgage legislation. In an effort to clarify, it has been based on the advisability of adding two paragraphs to the eighth article of the current Mortgage Law, the fourth and the fifth, which sanction, in principle, the possibility of registering the building as a whole, subject to to the horizontal property regime, and at the same time that of the apartment or premises as an independent farm, with its own registration folio.
The fourth number of the aforementioned eighth article provides for the normal hypothesis of constitution of the horizontal property regime, that is, the construction of a building by an owner who uses it precisely for the alienation of flats, and the case, less frequent, that several owners of a building try to get out of the undivided mutual agreement, or build a building with the intention of distributing it, "ab initio", among themselves, becoming sole owners of apartments or independent fractions. Exceptionally, with the same purpose of simplifying the entries, it is allowed to register the specific allocation of the repeated apartments in favor of their respective owners at the same time, provided that they all request it.
And the fifth number of the same eighth article allows creating the autonomous and independent of each floor or premises, provided that the property and the constitution of the horizontal property regime are previously registered.
By virtue of it, and in accordance with the proposal prepared by the Spanish Courts,
The purpose of this Law is to regulate the special form of property established in article 396 of the Civil Code, which is called horizontal property.
For the purposes of this Law, those parts of a building that are capable of being used independently as they have access to a common element of the building or to the public thoroughfare will also be considered premises.
This Law will apply:
- To the communities of owners constituted in accordance with the provisions of article 5.
- To the communities that meet the requirements established in article 396 of the Civil Code and have not granted the constitutive title of the horizontal property.
These communities will be governed, in any case, by the provisions of this Law in relation to the legal regime of property, its private parts and common elements, as well as in terms of the reciprocal rights and obligations of the community members.
- To private real estate complexes, in the terms established in this Law.
- To the sub-communities, understanding as such those that result when, in accordance with the provisions of the constitutive title, several owners have, in a community regime, for their exclusive use and enjoyment, certain common elements or services endowed with unity and functional independence or economic.
- To the urban conservation entities in the cases in which their statutes so provide.
Of the property regime by flats or premises.
In the property regime established in article 396 of the Civil Code, each floor or premises corresponds to:
- The singular and exclusive right of property over a space sufficiently delimited and capable of independent use, with architectural elements and installations of all kinds, apparent or not, that are included within its limits and exclusively serve the owner, as well as that of the Annexes that have been expressly indicated in the title, even if they are located outside the delimited space.
- The co-ownership, with the other owners of flats or premises, of the remaining elements,
common belongings and services.
Each floor or local will be attributed a participation fee in relation to the total value of the property and referred to hundredths of it. Said quota will serve as a module to determine the participation in the charges and benefits due to the community. The improvements or impairments of each floor or premises will not alter the assigned quota, which may only be varied in accordance with the provisions of articles 10 and 17 of this Law.
Each owner can freely dispose of his right, without being able to separate the elements that comprise it and without the transmission of the enjoyment affecting the obligations derived from this property regime.
The action of division will not proceed to put an end to the situation that regulates this law. It can only be exercised by each joint owner on a specific floor or premises, circumscribed to it, and provided that the joint venture has not been established intentionally for the common service or utility of all the owners.
The constitutive title of the property by floors or premises will describe, in addition to the property as a whole, each of those to which a correlative number will be assigned. The description of the property must express the circumstances required in the mortgage legislation and the services and facilities that it has. The one of each floor or local will express its extension, boundaries, plant in which it will be found and the annexes, such as garage, attic or basement.
In the same title, the participation fee that corresponds to each floor or premises will be established,
determined by the sole owner of the building at the beginning of its sale by flats, by agreement of all the existing owners, by award or by judicial resolution. For its fixation, the useful surface of each floor or premises will be taken as a basis in relation to the total of the property, its interior or exterior location, its situation and the use that is rationally presumed to be made of the services or common elements.
The title may also contain rules of constitution and exercise of the right and provisions not prohibited by law in order to the use or destination of the building, its different floors or premises, facilities and services, expenses, administration and government, insurance, conservation and repairs, forming a private statute that will not harm third parties if it has not been registered in the Land Registry.
In any modification of the title, and except for what is provided on the validity of agreements, the same requirements as for the constitution will be observed.
To regulate the details of coexistence and the proper use of services and common things, and within the limits established by the Law and the statutes, the group of owners may set internal rules that will also bind all owners as long as they are not modified in the manner foreseen to reach agreements on the administration.
- The owner of each floor or premises may modify the architectural elements, installations or services of the former when it does not undermine or alter the security of the building, its general structure, its configuration or exterior condition, or harm the rights of another owner, and must account for such works previously to whoever represents the community.
In the rest of the property you will not be able to make any alterations and if you notice the need for urgent repairs, you must notify the administrator without delay.
- The owner and the occupant of the apartment or premises are not allowed to carry out activities in it or in the rest of the property that are prohibited in the statutes, that are harmful to the property or that contravene the general provisions on annoying, unhealthy, harmful, dangerous or dangerous activities or illegal.
The president of the community, on his own initiative or that of any of the owners or occupants, will require whoever carries out the activities prohibited by this section to immediately cease them, under penalty of initiating the appropriate legal actions.
If the offender persists in his conduct, the President, with the prior authorization of the Board of Owners, duly convened for this purpose, may file an injunction against him, which, in matters not expressly provided for in this article, will be substantiated through the ordinary trial.
Once the lawsuit has been presented, accompanied by the accreditation of the irrefutable request to the offender and the certification of the agreement adopted by the Board of Owners, the judge may agree on a precautionary basis the immediate cessation of the prohibited activity, under penalty of incurring in the crime of disobedience. He may also adopt as many precautionary measures as may be necessary to ensure the effectiveness of the cessation order. The claim must be directed against the owner and, where appropriate, against the occupant of the home or premises.
If the judgment were upheld, it may order, in addition to the definitive cessation of the
prohibited activity and compensation for damages as appropriate, deprivation of the right to use the home or premises for a period not exceeding three years, depending on the seriousness of the infraction and the damage caused to the community. If the offender was not the owner, the sentence may declare all his rights related to the home or premises definitively extinguished, as well as his immediate release.
Article Eight. (Repealed).
- The obligations of each owner are:
- Respect the general facilities of the community and other common elements, whether for general or private use of any of the owners, whether or not they are included in their flat or premises, making proper use of them and avoiding at all times that they are caused damage or flaws.
- Keep your own apartment or premises and private facilities in good condition, in terms that do not harm the community or other owners, compensating for the damage caused by your carelessness or that of the people for whom you must respond.
- Consent in your home or premises to the repairs required by the service of the property and allow in it the essential easements required for the performance of works, actions or the creation of common services carried out or agreed upon in accordance with the provisions of this Law, having the right to be compensated by the community for the damages caused.
- Allow entry to your apartment or premises for the purposes stated in the three previous sections.
- Contribute, in accordance with the participation fee set in the title or as specifically established, to the general expenses for the proper maintenance of the property, its services, charges and responsibilities that are not subject to individualization.
The credits in favour of the community derived from the obligation to contribute to the support of the general expenses corresponding to the quotas attributable to the expired part of the current annuity and the previous three years have the status of preferential for the purposes of article 1,923 of the Code. Civil and precede, to your satisfaction, those cited in numbers 3, 4 and 5 of said precept, without prejudice to the preference established in favour of salary credits in the consolidated text of the Statute Law of Workers, approved by Royal Legislative Decree 1/1995, of March 24.
The purchaser of a home or premises under the horizontal property regime, even with title registered in the Property Registry, responds with the acquired property of the amounts owed to the community of owners for the maintenance of general expenses by the previous owners up to the limit of those that are attributable to the expired part of the annuity in which the acquisition takes place and the previous three calendar years. The apartment or premises will be legally subject to the fulfillment of this obligation.
In the public instrument through which the home or transferor, must declare that they are up to date in the payment of the general expenses of the community of owners or express those that they owe. The transferor must provide at this time certification on the state of debts with the community coinciding with his declaration, without which the granting of the public document cannot be authorized, unless he was expressly exempted from this obligation by the purchaser. The certification will be issued within a maximum period of seven calendar days from its request by whoever exercises the functions of secretary, with the approval of the president, who will respond, in case of fault or negligence, for the accuracy of the data recorded in it. and of the damages caused by the delay in its issuance.
- Contribute, according to their respective participation fee, to the endowment of the fund of reserve that will exist in the community of owners to attend to the works of conservation, repair and rehabilitation of the property, as well as the performance of the accessibility works included in article Ten.1.b) of this Law.
The reserve fund, whose ownership corresponds for all purposes to the community, will be endowed with an amount that in no case may be less than 10 percent of its last ordinary budget.
Charged to the reserve fund, the community may sign an insurance contract that covers the damage caused to the property or conclude a permanent maintenance contract for the property and its general facilities.
- Observe due diligence in the use of the property and in its relations with the other owners and answer to them for the infractions committed and the damages caused.
- Communicate to whoever exercises the functions of secretary of the community, by any means that allows proof of receipt, the address in Spain for the purposes of summonses and notifications of all kinds related to the community. In the absence of this communication, the address for summonses and notifications will be the apartment or premises belonging to the community, with full legal effects being given to the occupant of the same.
If a summons or notification to the owner is attempted, it is impossible to carry it out in the place prevented in the previous paragraph, it will be understood to be carried out by placing the corresponding communication on the community bulletin board, or in a visible place of general use enabled for this purpose, with expressive diligence of the date and reasons for which it proceeds to this form of notification, signed by the person who exercises the functions of secretary of the community, with the approval of the president. The notification practiced in this way will produce full legal effects within three calendar days.
- Communicate to whoever exercises the functions of secretary of the community, by any means that allows proof of receipt, the change of ownership of the home or premises.
Whoever fails to comply with this obligation will continue to be liable for the debts with the community accrued after the transfer jointly and severally with the new owner, without prejudice to the former's right to repeat the latter.
The provisions of the preceding paragraph shall not apply when any of the governing bodies established in article 13 has been made aware of the change in ownership of the dwelling or premises by any other means or by conclusive acts of the new owner, or when said transmission is noticeable.
- For the application of the rules of the previous section, expenses that are not attributable to one or more flats or premises will be considered general, without the non-use of a service exempting from compliance with the corresponding obligations, without prejudice to the provisions of article 17.4.
- The following actions will be mandatory and will not require the prior agreement of the Owners' Meeting, whether or not they imply modification of the constitutive title or the statutes, and are imposed by the Public Administrations or requested at the request of the owners:
- The works and the works that are necessary for the adequate maintenance and fulfilment of the duty of conservation of the property and its common services and facilities, including in any case, those necessary to satisfy the basic requirements of safety, habitability and universal accessibility, as well as the conditions of decoration and any others derived from the imposition, by the Administration, of the legal duty of conservation.
- The works and actions that are necessary to guarantee the adjustments reasonable in terms of universal accessibility and, in any case, those required at the request of the owners in whose home or premises they live, work or provide voluntary services, people with disabilities, or over seventy years of age, in order to ensure proper use to their needs of the common elements, as well as the installation of ramps, lifts or other mechanical and electronic devices that favour orientation or their communication with the outside, provided that the amount passed on annually from them, once the subsidies or aid public, does not exceed twelve ordinary monthly payments of common expenses. The mandatory nature of these works will not be eliminated by the fact that the rest of their cost, beyond the aforementioned monthly payments, is assumed by those who have requested them.
It will also be mandatory to carry out these works when the public aid to which the community can have access reach 75% of the amount of the same.
- The occupation of common elements of the building or of the private real estate complex during the duration of the works referred to in the previous letters.
- The construction of new floors and any other alteration of the structure or factory of the building or of common things, as well as the constitution of a real estate complex, as provided for in article 17.4 of the consolidated text of the Land Law, approved by the Royal Legislative Decree 2/2008, of June 20, which are mandatory as a result of the inclusion of the property in a field of rehabilitation or regeneration and urban renewal.
- The acts of material division of flats or premises and their annexes to form other more
reduced and independent, the increase of its surface by aggregation of other adjacent to the same building, or its reduction by segregation of some part, carried out by will and at the request of its owners, when such actions are possible as a result of the inclusion of the property in a field of action of urban rehabilitation or regeneration and renewal.
- Taking into account the necessary or mandatory nature of the actions referred to in letters a) to d) of the previous section, the following shall apply:
- They will be paid for by the owners of the corresponding community or group of communities, limiting the agreement of the Board to the distribution of the pertinent spill and to the determination of the terms of its payment.
- The owners who oppose or unjustifiably delay the execution of the orders issued by the competent authority will be individually liable for the sanctions that may be imposed by administrative means.
- The flats or premises will be subject to the payment of the expenses derived from carrying out said works or actions in the same terms and conditions as those established in article 9 for general expenses.
- They will require administrative authorization, in any case:
- The constitution and modification of the real estate complex referred to in article
17.6 of the revised text of the Land Law, approved by Royal Legislative Decree 2/2008, of June 20, in the same terms.
- When so requested, prior approval by three-fifths of the total owners who, in turn, represent three-fifths of the participation fees, the material division of the flats or premises and their annexes, to form other smaller and more independent; the increase in its surface due to the aggregation of other adjoining buildings of the same building or its decrease due to the segregation of some part; the construction of new floors and any other alteration of the structure or factory of the building, including the closing of the terraces and the modification of the envelope to improve energy efficiency, or of common things, when the requirements referred to in the article are met
17.6 of the revised text of the Land Law, approved by Royal Legislative Decree 2/2008,
of June 20.
In these cases, the consent of the affected owners must be recorded and it will be up to the Owners' Meeting, in common agreement with them, and by a three-fifths majority of the total owners, to determine the corresponding compensation for damages. The setting of the new participation quotas, as well as the determination of the nature of the works to be carried out, in case of discrepancy on them, will require the adoption of the appropriate agreement of the Board of Owners, by the same majority. In this regard, the interested parties may also request arbitration or technical opinion in the terms established in the Law.
Article eleven. (repealed).
Article twelve. (repealed).
- The governing bodies of the community are the following:
- The Board of Owners.
- The President and, where appropriate, the vice presidents.
- The Secretary.
- The Administrator.
In the statutes, or by majority agreement of the Board of Owners, other governing bodies of the community may be established, without this implying any impairment of the functions and responsibilities towards third parties that this Law attributes to the above.
- The president will be appointed, among the owners, by election or, alternatively, by rotating shift or lottery. The appointment will be mandatory, although the designated owner may request the judge's relief within the month following his access to the position, invoking the reasons that assist him to do so. The judge, by means of the procedure established in article 17.7.ª, will resolve the matter outright, designating in the same resolution the owner who would replace, where appropriate, the president in the position until a new appointment is made within the term determined in the judicial resolution.
Likewise, the judge may be consulted when, for any reason, it is impossible for the Board to appoint the president of the community.
- The president will legally hold the representation of the community, in court and outside of it, in all matters that affect it.
- The existence of vice presidents will be optional. His appointment will be made by the same procedure as that established for the appointment of the president.
It corresponds to the vice-president, or to the vice-presidents by their order, to substitute the president in the cases of absence, vacancy or impossibility of the latter, as well as to assist him in the exercise of his functions in the terms established by the Board of Owners.
- The functions of the secretary and of the administrator will be exercised by the president of the community, unless the statutes or the Board of owners by majority agreement, provide for the provision of said positions separately from the presidency.
- The positions of secretary and administrator may be accumulated in the same person or appointed independently.
The position of administrator and, where appropriate, that of secretary-administrator may be exercised by any owner, as well as by natural persons with sufficient and legally recognized professional qualifications to exercise said functions. It may also fall on corporations and other legal entities in the terms established in the legal system.
- Unless the statutes of the community provide otherwise, the appointment of the governing bodies will be made for a period of one year.
Those designated may be removed from their position before the expiration of the mandate by agreement of the Board of Owners, convened in an extraordinary session.
- When the number of homeowners or premises owners in a building does not exceed four, they may avail themselves of the administration regime of article 398 of the Civil Code, if expressly established in the statutes.
Corresponds to the Board of Owners:
- Appoint and remove the people who hold the positions mentioned in the previous article and resolve the claims that the owners of the flats or premises make against their actions.
- Approve the plan of expenses and foreseeable income and the corresponding accounts.
- Approve the budgets and the execution of all the repair works of the property, whether ordinary or extraordinary, and be informed of the urgent measures adopted by the administrator in accordance with the provisions of article 20.c).
- Approve or amend the statutes and determine the rules of the internal regime.
- Know and decide on other matters of general interest to the community, agreeing on the necessary or convenient measures for the best common service.
- Attendance at the Owners' Meeting will be personal or by legal or voluntary representation, sufficing to accredit this, a document signed by the owner.
If any apartment or premises belonged "pro undivided" to different owners, they will appoint a representative to attend and vote at the meetings.
If the dwelling or premises is in usufruct, attendance and voting will correspond to the bare owner, who, unless otherwise stated, will be understood to be represented by the usufructuary, and the delegation must be express in the case of the agreements referred to in the first rule of article 17 or extraordinary and improvement works.
- Owners who at the time the meeting begins are not up to date with the payment of all overdue debts with the community and have not judicially challenged them or proceeded to the judicial or notarial appropriation of the amount owed, may participate in their deliberations, although they will not have the right to vote. The minutes of the Meeting will reflect the private owners of voting rights, whose person and share of participation in the community will not be computed for the purpose of reaching the majorities required in this Law.
- The Board of Owners will meet at least once a year to approve the budgets and accounts and on other occasions that the president deems convenient or requested by a quarter of the owners, or a number of these that represent at least the 25% of the participation fees.
- Meetings will be called by the chairman and, failing that, by the promoters of the meeting, indicating the matters to be discussed, the place, day and time it will be held on first or, where appropriate, on second call. , making the citations in the manner established in article 9. The call will contain a list of the owners who are not up to date in the payment of overdue debts to the community and will warn of the deprivation of the right to vote if the assumptions occur provided for in article 15.2.
Any owner may request that the Board of Owners study and decide on any topic of interest to the community; To this end, he will send a letter, in which he clearly specifies the matters that he requests to be dealt with, to the president, who will include them in the agenda of the next Meeting that is held.
If the meeting of the Board does not attend, on first call, the majority of the owners who represent, in turn, the majority of the participation quotas, a second call will be made, this time without being subject to "quorum ".
The Meeting will meet on second call at the place, day and time indicated in the first summons, and may be held on the same day if half an hour has elapsed since the previous one. Failing that, it will be convened again, in accordance with the requirements established in this article, within eight calendar days following the meeting not held, in this case summonses being served at least three days in advance.
- The summons for the Annual Ordinary Meeting will be made, at least, six days in advance, and for the extraordinary ones, with whatever is possible so that it can reach the knowledge of all the interested parties. The Board may meet validly even without the call of the president, provided that all the owners attend and so decide.
The agreements of the Board of Owners will be subject to the following rules:
- The installation of common infrastructures for access to telecommunication services regulated in Royal Decree-Law 1/1998, of February 27, on common infrastructures in buildings for access to telecommunication services, or the adaptation of the existing systems, as well as the installation of common or private systems for the use of renewable energy, or of the infrastructures necessary to access new collective energy supplies, may be agreed upon, at the request of any owner, by a third of the members of the community that represent, in turn, a third of the participation quotas.
The community will not be able to pass on the cost of the installation or adaptation of said common infrastructures, nor those derived from its conservation and subsequent maintenance, on those owners who have not expressly voted in favor of the agreement at the Meeting. However, if they subsequently request access to telecommunications services or energy supplies, and this requires taking advantage of the new infrastructures or the adaptations made to the pre-existing ones, they may be authorized provided they pay the amount that would have corresponded to them, duly updated, applying the corresponding legal interest.
Notwithstanding the provisions of the preceding paragraph regarding the costs of conservation and maintenance, the new installed infrastructure will be considered, for the purposes established in this Law, as a common element.
- Without prejudice to the provisions of article 10.1 b), the performance of works or the establishment of new common services whose purpose is the elimination of architectural barriers that hinder the access or mobility of people with disabilities and, in any case, the establishment of elevator services, even when they involve the modification of the constitutive title, or of the statutes, will require the favourable vote of the majority of the owners, who, in turn, represent the majority of the participation quotas.
When agreements are validly adopted to carry out accessibility works, the community will be obliged to pay the expenses, even when the amount passed on annually exceeds twelve ordinary monthly payments of common expenses.
Carrying out works or actions that contribute to the improvement of accredited energy efficiency through the building's energy efficiency certificate or the implementation of renewable energy sources for common use, as well as the request for aid and subsidies, loans or any type of financing by the community of owners to public or private entities to carry out such works or actions, will require the favourable vote of the majority of the owners, who, in turn, represent the majority of the participation quotas, provided that its cost passed on annually, once subsidies or public aid have been deducted and the financing applied, where appropriate, does not exceed the amount of nine ordinary monthly payments of common expenses. The dissenting owner will not have the right recognized in section 4 of this article and the cost of these works, or the amounts necessary to defray the loans or financing granted for this purpose, will be considered general expenses for the purposes of the application of the rules established in letter e) of article ninth.1 of this law.
- The establishment or suppression of porter services, concierge, surveillance or
other common services of general interest, whether or not they involve modification of the constitutive title or the statutes, will require the favourable vote of three-fifths of the total number of owners who, in turn, represent three-fifths of the participation quotas. The same regime will apply to the leasing of common elements that are not assigned a specific use in the property and the establishment or removal of equipment or systems, not included in section 1, whose purpose is to improve the energy or water efficiency of the property. In the latter case, the agreements validly adopted in accordance with this rule are binding on all owners. However, if the equipment or systems have a private use,
costs established in said section.
- No owner may demand new facilities, services or improvements not required for the adequate conservation, habitability, security and accessibility of the property, according to its nature and characteristics.
However, when by the favourable vote of three-fifths of the total owners who, in turn, represent three-fifths of the participation quotas, agreements are validly adopted to carry out innovations, new installations, services or improvements not required for the proper conservation, habitability, security and accessibility of the property, not required and whose installation fee exceeds the amount of three ordinary monthly payments of common expenses, the dissident will not be obliged, nor will his fee be modified, even in the case of that he cannot be deprived of the improvement or advantage. If the dissident wishes, at any time, to participate in the advantages of the innovation, he will have to pay his share in the costs of realization and maintenance,
No innovations may be made that make any part of the building unusable for the use and enjoyment of an owner, if his express consent is not recorded.
- The installation of a charging point for electric vehicles for private use in the building's car park, provided that it is located in an individual parking space, will only require prior communication to the community. The cost of said installation and the corresponding electricity consumption will be fully assumed by the person or persons directly interested in it.
- The agreements not expressly regulated in this article, which imply the approval or modification of the rules contained in the constitutive title of the horizontal property or in the statutes of the community, will require the unanimity of all the owners who, in their turn, represent the total of the participation fees.
- For the validity of the other agreements, the vote of the majority of the total owners who, in turn, represent the majority of the participation quotas will suffice. On second call will be valid agreements adopted by the majority of attendees, provided that it represents, in turn, more than half of the value of the quotas of those present.
When the majority cannot be achieved by the procedures established in the previous sections, the Judge, at the request of a deducted party in the month following the date of the second Meeting, and hearing the aforementioned contradictors in appearance, will resolve in equity what Proceed within twenty days, counted from the request, making a pronouncement on the payment of costs.
- Except in the cases expressly provided for in which the cost of the services cannot be passed on to those owners who have not expressly voted in favour of the agreement at the Meeting, or in cases in which the modification or reform is made for private use , the votes of those owners absent from the Meeting, duly summoned, who once informed of the agreement adopted by those present, in accordance with the procedure established in article 9, do not express their discrepancy by means of communication to whoever exercises the functions of secretary of the community within 30 calendar days, by any means that allows proof of receipt.
- The agreements validly adopted in accordance with the provisions of this article
obligate all owners.
- In case of discrepancy about the nature of the works to be carried out, the Board of Owners will resolve what is appropriate. The interested parties may also request arbitration or technical opinion in the terms established in the Law.
- The spills for the payment of improvements made or to be made in the property will be borne by the owner at the time of the enforceability of the amounts affected by the payment of said improvements.
- The agreement that limits or conditions the exercise of the activity referred to in letter e) of article 5 of Law 29/1994, of November 24, on Urban Leases, in the terms established in the tourism sector regulations , whether or not it involves a modification of the constitutive title or the bylaws, will require the favourable vote of three fifths of the total owners who, in turn, represent three fifths of the participation quotas. Likewise, this same majority will be required for the agreement that establishes special expenses quotas or an increase in the share of the common expenses of the dwelling where said activity is carried out, provided that these modifications do not suppose an increase of more than 20%. . These agreements will not have retroactive effect.
- The agreements of the Homeowners' Meeting may be challenged before the courts in accordance with the provisions of the general procedural legislation, in the following cases:
- When they are contrary to the law or to the statutes of the community of owners.
- When they are seriously harmful to the interests of the community itself for the benefit of one or more owners.
- When they involve serious damage to an owner who has no legal obligation to bear it or have been adopted with abuse of rights.
- Owners who have saved their vote at the Meeting, those who are absent for any reason and those who have been unduly deprived of their right to vote will be entitled to challenge these agreements. To challenge the agreements of the Board, the owner must be up to date in the payment of all the debts due with the community or proceed previously to the judicial appropriation of the same. This rule shall not apply to the challenges of the agreements of the Board relating to the establishment or alteration of the participation quotas referred to in article 9 between the owners.
- The action will expire three months after the agreement is adopted by the Board of Directors owners, except in the case of acts contrary to the law or the statutes, in which case the action will expire after one year. For absentee owners, said period will be computed from the communication of the agreement in accordance with the procedure established in article 9.
- Challenging the agreements of the Board will not suspend their execution, unless the judge so provides as precautionary, at the request of the plaintiff, after hearing the community of owners.
- The agreements of the Board of Owners will be reflected in a minute book filled out by the Property Registrar in the manner provided by regulation.
- The minutes of each meeting of the Board of Owners must express, at least, the following circumstances:
- The date and place of celebration.
- The author of the call and, where appropriate, the owners who promoted it.
- Its ordinary or extraordinary nature and the indication about its celebration in first or second call.
- List of all attendees and their respective positions, as well as the owners represented, indicating, in any case, their participation fees.
- The agenda of the meeting.
- The agreements adopted, indicating, if this were relevant to the validity of the agreement, the names of the owners who voted for and against them, as well as the participation quotas they respectively represent.
- The minutes must be closed with the signatures of the president and the secretary at the end of the meeting or within the following ten calendar days. From their closing, the agreements will be executive, unless the Law provides otherwise.
The minutes of the meetings will be sent to the owners in accordance with the procedure established in article 9.
Defects or errors in the minutes will be corrected provided that the same unequivocally expresses the date and place of celebration, the owners attending, present or represented, and the agreements adopted, indicating the votes for and against, as well as the shares of participation that respectively supposes and is signed by the president and the secretary. Said correction must be made before the next meeting of the Owners' Meeting, which must ratify the correction.
- The secretary will keep the minute books of the Board of Owners. in addition
You must keep, for a period of five years, the calls, communications, powers of attorney and other relevant documents of the meetings.
1. Corresponds to the administrator:
- Ensure the good regime of the house, its facilities and services, and make the appropriate warnings and warnings to the owners for these purposes.
- Prepare with due advance and submit to the Board the plan of foreseeable expenses, proposing the necessary means to deal with them.
- Attend to the conservation and entertainment of the house, arranging for repairs and measures that are urgent, reporting them immediately to the president or, as the case may be, to the owners.
- Execute the agreements adopted in terms of works and make the payments and make the collections that are appropriate.
- Act, where appropriate, as secretary of the Board and keep the documentation of the community available to the owners.
- All other powers conferred by the Board.
Article Twenty One.
- The obligations referred to in sections e) and f) of article 9 must be fulfilled by the owner of the dwelling or premises in the time and manner determined by the Board. Otherwise, the president or the administrator, if so agreed by the owners' meeting, may demand it judicially through the order for payment process.
- The use of the order for payment procedure will require the prior certification of the agreement of the Board approving the liquidation of the debt with the community of owners by whoever acts as secretary of the same, with the approval of the president, provided that such agreement has been notified to the owners affected in the manner established in article 9.
- To the amount that is claimed by virtue of the provisions of the preceding section, the amount derived from the expenses of the prior request for payment may be added, provided that it is documented that it has been made, and proof of such expenses is attached to the request.
- When the previous owner of the home or premises must respond jointly and severally for the payment of the debt, the initial petition may be filed against him, without prejudice to his right to repeat against the current owner. Likewise, the claim may be directed against the registered owner, who will enjoy the same right mentioned above.
In all these cases, the initial request may be made against any of the obligors or against all of them jointly.
- When the debtor opposes the initial request for payment order, the creditor may request the preventive seizure of sufficient assets of the debtor, to meet the amount claimed, interest and costs.
The court will agree, in any case, the preventive attachment without the need for the creditor to provide security. However, the debtor may invalidate the embargo by providing a bank guarantee for the amount for which it had been decreed.
- When the professional services of a lawyer and solicitor are used in the initial application for the order for payment procedure to claim the amounts owed to the Community, the debtor must pay, subject in any case to the limits established in the third section of article 394 of the Law of Civil Procedure, the fees and rights accrued by both for their intervention, whether the former complies with the payment requirement or does not appear in court. In cases where there is opposition, the general rules regarding costs will be followed, although if the creditor obtains a sentence totally favourable to his claim, the lawyer's fees and the attorney's rights derived from his intervention must be included in them, although it was not mandatory.
Article Twenty Two.
- The community of owners will be responsible for their debts to third parties with all the funds and credits in their favour. Subsidiarily and prior request for payment to the respective owner, the creditor may go against each owner who had been a party in the corresponding process for the share that corresponds to the unsatisfied amount.
- Any owner may oppose the execution if he proves that he is up to date in the payment of all the debts due with the community at the time of formulating the requirement referred to in the previous section.
If the debtor pays in the act of request, the costs caused up to that moment will be borne by him in the proportional part that corresponds to him.
Article Twenty Three.
The horizontal property regime is extinguished:
First. For the destruction of the building, unless otherwise agreed. It will be considered produced when the cost of the reconstruction exceeds fifty percent of the value of the property at the time of the accident, unless the excess of said cost is covered by insurance.
Second. By conversion into ordinary ownership or co-ownership.
Of the regime of private real estate complexes
Article Twenty Four.
- The special property regime established in article 396 of the Civil Code will be applicable to those private real estate complexes that meet the following requirements:
- Be made up of two or more buildings or plots independent of each other whose main destination is housing or premises.
- The owners of these properties, or of the homes or premises in which they are divided horizontally, participate, inherently to said right, in an indivisible co-ownership of other real estate elements, roads, facilities or services.
- The private real estate complexes referred to in the previous section may:
- Become a single community of owners through any of the procedures established in the second paragraph of article 5. In this case, they will be subject to the provisions of this Law, which will be fully applicable.
- Become a group of communities of owners. For this purpose, it will be required that the constitutive title of the new grouped community be granted by the sole owner of the complex or by the presidents of all the communities called to integrate it, previously authorized by majority agreement of their respective Boards of owners. The constitutive title will contain the description of the real estate complex as a whole and of the elements, roads, facilities and common services. Likewise, it will set the participation fee for each of the integrated communities, which will be jointly responsible for their obligation to contribute to the support of the general expenses of the grouped community. The title and the statutes of the grouped community will be registered in the Land Registry.
- The grouping of communities referred to in the previous section shall enjoy, for all the effects, of the same legal situation as the communities of owners and will be governed by the provisions of this Law, with the following specialties:
- The Board of owners will be composed, unless otherwise agreed, by the presidents of the communities integrated in the group, who will hold the representation of all the owners of each community.
- The adoption of agreements for which the law requires qualified majorities will require, in any case, the prior obtaining of the majority in question in each of the Owners' Meetings of the communities that make up the group.
- Unless otherwise agreed by the Board, the provisions of article 9 of this Law on the reserve fund shall not apply to the grouped community.
The competence of the governing bodies of the grouped community only extends to real estate elements, roads, facilities and common services. Its agreements may not in any case undermine the powers that correspond to the governing bodies of the communities of owners integrated in the group of communities.
- The provisions of this Law, with the same specialties indicated in the previous section, will be applicable to private real estate complexes that do not adopt any of the legal forms indicated in section 2, in addition to the agreements established between the co-owners.
- Without prejudice to the provisions adopted by the Autonomous Communities in use of their powers, the constitution of the reserve fund regulated in article 9.1.f) will be adjusted to the following rules:
- The fund must be constituted at the time of approval by the Board of Owners of the ordinary budget of the community corresponding to the annual exercise immediately after the entry into force of this provision.
The new communities of owners will constitute the reserve fund when approving their first ordinary budget.
- At the time of its constitution, the fund will be endowed with an amount not less than 2.5 per 100 of the ordinary budget of the community. To this end, the owners
They must previously make the necessary contributions based on their respective participation quota.
- When approving the ordinary budget corresponding to the year immediately following that in which the reserve fund is constituted, its endowment must reach the minimum amount established in article 9.
- The endowment of the reserve fund may not be lower, at any time during the budget year, than the established legal minimum.
The amounts withdrawn from the fund during the budget year to meet the costs of the works or actions included in article 10 will be computed as an integral part of the fund for the purposes of calculating its minimum amount.
At the beginning of the following budget year, the necessary contributions will be made to cover the amounts withdrawn from the reserve fund in accordance with the provisions of the preceding paragraph.
This law will govern all the communities of owners, whatever the moment in which they were created and the content of their statutes, which may not be applied in contradiction to what is established in it.
Within a period of two years, counting from the publication of this law in the «Official State Gazette», the communities of owners must adapt their statutes to the provisions of it in what is in contradiction with its precepts.
After two years have elapsed, any of the owners may judicially request the adaptation provided for in this provision by the procedure indicated in the second number of article sixteen.
In the current regulatory statutes of the property by flats, in which the right of first refusal and withdrawal is established in favour of the owners, the same will be understood as modified in the sense of rendering such right ineffective, except that, in a new meeting, and by a majority representing at least 80% of the owners, the maintenance of the aforementioned rights of first refusal and withdrawal will be agreed in favour of the members of the community.
Any provisions that oppose the provisions of this law are hereby repealed. Given at the Palace of El Pardo on July twenty-first, one thousand nine hundred and sixty.