Archive for mayo, 2013

Do you have debts with your community of owners?

domingo, mayo 12th, 2013

 You could be deprived of the use of swimming pools, tennis courts and other facilities

 To modify the Community statutes (Bylaws) established in the Land Registry, unanimity is needed. But what if there are owners who do not pay their dues? Can they be deprived of the use of the elevator? Obviously not, because when you buy the house with it you have the right of ownership of the facilities of the property, making it unconstitutional prohibiting the use of the elevators or stairs as they are common areas essential to access the house.

 Enjoy and dispose of things without other limitations than those established by law (Article 348 Civil Code), and based on the possibility that through statutory provision can be imposed certain restrictions on the property can be against the law. The jurisprudence has declared that such limitations must be interpreted restrictively as they may constitute an interference with property. (Judgments of the Supreme Court of February 6, 1989, July 24, 1992, April 21, 1997, February 29, 2000 and January 26, 2002)

 The Condominium Act and the Civil Procedure Act establish rules to collect outstanding debts of the owners who don’t pay their community fees which are necessary for the maintenance of the house and its facilities. But it remains true that despite the efforts of the legislature to speed up procedures, the fastest procedure for a community of owners to collect the debtors money can be extended two years and eventually not be able to receive those fees because of the existence of liens, mortgages and other charges on the property.

 This argument and others are those that were given in the legal recourse brought by a community of owners of Mazarrón who voted in General Board of Proprietors a modification of the statutes which would temporarily deprive debtors to use the pools and tennis courts as long as they did not pay their community fees. It was further argued that even though laws for the collection of fees through the courts exist, «… supposing the procedure to be agile, shows a lack of knowledge of the Spanish justice.»

 The Property Registrar denied its registration because a lack of a necessary unanimity, but the General Registers and Notaries, in Resolution of October 23, 2012, decided the following:

 The point is to determine whether statutory rules can make limitations on the use of certain common elements, as a consequence of a lack of payment of community fees in concordance with the regulation in the Condominium Act.

 Having read the Article 396 of the Civil Code, 3, 5, 9 first e), 11.2, 15.2, 18, 21 and related provisions of the Condominium Act; Judgment of the Constitutional Court of October 21, 1993, Supreme Court Decisions 6 July 1978, January 28 and March 8, 1994, the Constitutional Court Judgment 301/1993, of 21 October, and the resolutions of the General Directorate of Registries and Notaries of June 4, 2003 and 18 June 2010 …

«The statutory provision is therefore adjusted to law, since neither it goes against any mandatory norm nor violates the minimum content of the property law. It only represents a temporary deprivation of the right of use, referring to elements that are not necessary for the normal use and enjoyment of the corresponding element, and thus as a result of the violation of the rules that regulate the maintenance of the property. «

Therefore, the General Board of Proprietors in regular or special meeting may modify the statutes by adding an article or section in these statutes with the following clarification to be registrable without requiring unanimity:

«The owners who make no contribution or owe their community regular or special fees, shall be denied the access to the community pool and tennis courts.»

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