Ley 49/1960, de 21 de julio, sobre propiedad horizontal – ENGLISH TRANSLATION

If, in general terms, any legal system cannot be conceived or established ignoring the demands of the social reality to which it is addressed, this must be even more so when it concerns an institution which, like horizontal property, has acquired such powerful vitality, especially in recent years, despite having no further normative support than the openly insufficient provision represented by Article three hundred ninety-six of the Civil Code. The present law aims, therefore, to follow the social reality of facts. But not in the simple sense of converting any data obtained from practice into a norm, but with a broader and deeper scope. On one hand, due to the dimension of the future inherent in legal regulation, which prevents understanding it as mere sanction of what happens today and obliges foreseeing what may happen. And on the other hand, because although the starting point and immediate destiny of the norms is to govern human relations, for which their adaptation to the concrete and historical demands and contingencies of life is very important, it must also not be forgotten that their ultimate purpose, particularly when Positive Law is conceived in function of Natural Law, is to achieve an order of coexistence presided over by the idea of justice, which, as a moral virtue, overrides 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 regulation of urban property. It manifests itself through a constant factor, which is the irrepressible need for buildings, both for the life of the individual and the family and for the development of fundamental activities, such as commerce, industry, and, in general, the exercise of professions. Alongside this factor, which is constant in the sense of being inherent to any system of life and coexistence within an elementary civilization, another factor appears today, caused by very diverse determinations, which manifests itself in very pronounced terms, represented by the difficulties involved in the acquisition, availability, and enjoyment of habitable premises. State action has considered and addressed this real situation in three spheres, although diverse, very directly related: in the sphere of construction, promoting it through indirect measures and even, on occasion, directly undertaking the enterprise; in the sphere of leasing, through frequently renewed legislation, which restricts the autonomous power of the will to ensure permanence in the enjoyment of homes and business premises under economic conditions subject to a system of intervention and review; and in the sphere of property, mainly through so-called horizontal property, which projects this ownership onto specific spaces of the building. The essential reason for the existence 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 elements indispensable for attending to one’s own needs, is less substantial and, therefore, more accessible to all and the only possible one for large sectors of people. This being the case, the horizontal property regime not only needs to be recognized but also requires encouragement and channelling, providing it with a complete and effective regulation. And even more so if it is observed that, on the other hand, while the current legislative provisions on urban leases are nothing more than occasional remedies, which resolve the conflict of interests imperfectly, since the strengthening of the leasing institution is achieved by imposing a burden on property that it can hardly bear; on the contrary, combining measures aimed at increasing construction with a well-organized horizontal property regime confronts the housing problem and those connected to it on a more appropriate plane, allowing for stable solutions; and this will ultimately redound to the advantage of the leasing regime itself, which may, without the pressure of pressing demands, liberalize itself and normally fulfill its economic-social function.

The law represents, more than a reform of existing legality, the complete regulation ‘ex novo’ of property by floors. It is carried out through a law of a general nature, in the sense of being applicable to the entire national territory. Article three hundred ninety-six of the Civil Code, as occurs in analogous cases, gathers the essential features of this property regime and, moreover, is reduced to a referral norm. The general character of the law is advised, above all, by the reason of legislative policy derived from the fact that the need it serves manifests itself equally throughout the territory; but a reason of legislative technique has also been taken into account, such as the fact that the provisions in which it is translated, without descending to regulatory matters, are sometimes of a circumstantial concreteness that exceeds the typical tone of a Civil Code.

Horizontal property made its irruption into legal systems as a modality of the community of goods. The progressive development of the institution has tended mainly to underline the profiles that make it independent from the community. The modification introduced by the Law of October 26, 1939, in the text of Article three hundred ninety-six of the Civil Code already meant an advance in that sense, since it recognized the private or singular ownership of the floor or premises, with the community, as accessory, limited to what have been called common elements. The law – which incorporates the material prepared with consideration and care by the Codes Commission –, taking a step further, aims to maximize the individualization of property from the point of view of the object. To this end, the property itself, its appurtenances, and services are incorporated into this object of the relationship, constituted by the floor or premises. While on the floor ‘stricto sensu’, or space, delimited and for independent use, the use and enjoyment are exclusive, on the ‘property’, building, appurtenances, and services – abstraction made of the particular spaces – such use and enjoyment must naturally be shared; but both rights, although different in scope, are deemed inseparably united, a unity that they also maintain regarding the power of disposal. Based on the same idea, the coefficient or share 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 charges, the proportional value of the floor and what is considered united to it, in the whole of the property, which, at the same time as it is physically and legally divided into floors or premises, is thus economically divided into fractions or shares.

In this individualizing purpose, one should not see a dogmatic concern, much less the consecration of an ideology of an individualistic nature. It is about not forgetting the aforementioned social function that this institution fulfills, understanding that the aim of simplifying and facilitating the horizontal property regime is thus achieved more satisfactorily. With the distancing from the community of goods system, the express elimination of the rights of first refusal and redemption, recognized, with certain peculiarities, in the currently valid wording of the aforementioned Article three hundred ninety-six, results not only in being congruent but also reassuring. However, neither in this case has this technical consideration alone guided the law. Decisive influence has been exercised by both the notorious experience that the exclusion of such rights has currently become almost a standard clause and the thought that what is sought here is not a concentration of ownership of floors or premises, but, on the contrary, its widest diffusion.

A matter of special study has been that concerning the constitution of the horizontal property regime 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 almost totally entrusted, in the absence of legal norms, to private autonomy reflected in the Statutes. These were frequently not the result of the free reciprocal determinations of the contracting parties, but, ordinarily, they were dictated, subject to certain types generalized by practice, by the promoter of the construction company, with the persons entering the horizontal property regime merely adhering. The law offers a regulation that, on one hand, is sufficient by itself – with the exceptions left to private initiative – to constitute, essentially, the legal system that presides over and governs this class of relations, and, on the other hand, allows that, by the work of the will, certain rights and duties be specified, completed, and even modified, provided that the norms of necessary law, clearly deducible from the very terms of the law, are not contravened. Hence, the formulation of Statutes will not be indispensable, although they may fulfill the function of developing the legal regulation and adapting it to the concrete circumstances of the various cases and situations.

The system of rights and duties within horizontal property appears structured according to the interests at stake.

Enjoyment rights 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 the others and by the general interest, which is embodied in the conservation of the building and the subsistence of the horizontal property regime, which requires a material and objective base. For the same reason, intimately linked to enjoyment rights appear duties of the same nature. An attempt has been made to configure them with criteria inspired by neighbourly relations, seeking to dictate norms aimed at ensuring that the exercise of one’s own right does not result in harm to others or detriment to the whole, in order to establish the bases for normal and peaceful coexistence.

In addition to regulating the rights and duties corresponding to enjoyment, the law deals with those others that refer to the economic outlays that the owners must jointly meet, whether derived from facilities and services of a general nature, or because they constitute charges or taxes affecting the entire building. The basic criterion taken into account to determine the participation of each one in the outlay to be made is the expressed share or coefficient assigned to the floor or premises, taking care to indicate that the non-use of the service generating the expense does not exempt from the corresponding obligation.

One of the most important novelties contained in the law is to strengthen as much as possible the binding force of the duties imposed on the owners, both regarding the enjoyment of the apartment, and regarding the payment of expenses. Through the application of the general norms in force on the matter, the breach of obligations generates the action aimed at judicially demanding their compliance, either specifically, that is, imposing through coercion what has not been voluntarily observed, or by virtue of the pertinent compensation. But this normal sanction for breach may not be sufficiently effective in cases like those considered here, and for various reasons: one is that the non-observance of the duty has extremely disruptive repercussions for large groups of people, while hindering the functioning of the horizontal property regime; another reason is that, regarding enjoyment duties, 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. Therefore, the possibility of judicial deprivation of the enjoyment of the floor or premises is foreseen when expressly indicated circumstances concur, and on the other hand, the contribution to common expenses is ensured with a real encumbrance of the floor or premises for the payment of this credit considered preferential.

The concurrence of a collectivity of persons in the ownership of rights that, without prejudice to their substantial individualization, fall on fractions of the same building and give rise to relations of interdependence that affect the respective owners, has made the creation of management and administration bodies indispensable in practice. The law, which has always wanted to be open to the lessons of experience, has taken this very especially into account in this matter. And the fruit of this, as well as of the careful consideration of the various problems, has been to normally entrust the adequate functioning of the horizontal property regime to three bodies: the Assembly, its President, and the Administrator. The Assembly, composed of all the owners, has the tasks proper to a collective governing body, must meet mandatorily once a year, and for the adoption of valid agreements, the favourable vote of both the numerical or personal majority and the economic majority is generally required, except when the importance of the matter requires unanimity, or when, on the contrary, due to its relative importance, and so that the simple passivity of the owners does not hinder the functioning of the institution, a simple majority of those present is sufficient. The position of President, which must be elected from within the Assembly, implicitly carries the representation of all the owners in court and out of it, thus resolving the delicate problem of standing that has been occurring. And, finally, the Administrator, who must be appointed by the Assembly and is removable, whether or not a member of it, must always act under the dependence of the Assembly, without prejudice to fulfilling in any case the obligations directly imposed on him.

Furthermore, a certain flexibility has been given to this so that the number of these persons in charge of representation and management is greater or lesser according to the importance and need of the collectivity.

Finally, it should be noted that the economy of the established system has interesting repercussions as it affects the Property Registry and requires a brief reform in mortgage legislation. Driven by a desire for clarity, the starting point has been the convenience of adding two paragraphs to Article eight of the current Mortgage Law, the fourth and fifth, which sanction, in principle, the possibility of registering the building as a whole, subject to the horizontal property regime, and at the same time that of the floor or premises as an independent property, with its own registry folio.

The fourth number of the aforementioned Article eight foresees the normal hypothesis of constituting the horizontal property regime, that is, the construction of a building by an owner who intends precisely to sell floors, and the less frequent case, where several owners of a building try to leave the indivision by mutual agreement, or build a building intending to distribute it, ‘ab initio’, among themselves, transforming themselves into singular owners of apartments or independent fractions. Exceptionally, with the same purpose of simplifying the entries, it is allowed to register at the same time the specific allocation of the aforementioned apartments in favour of their respective owners, provided that all of them so request.

And the fifth number of the same article eight allows the creation of an autonomous and independent folio for each floor or premises, provided that the property and the constitution of the horizontal property regime are previously registered.

By virtue thereof, and in accordance with the proposal prepared by the Spanish Courts,

I D E C R E E :

CHAPTER I
General Provisions
Article one.
This Law aims 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, premises will also be considered those parts of a building that are susceptible to independent use because they have an exit to a common element of the building or to the public highway.

Article two.
This Law shall apply:

a) To communities of owners constituted according to the provisions of Article 5.

b) To communities that meet the requirements established in Article 396 of the Civil Code and have not granted the constitutive title of horizontal property.

These communities shall be governed, in any case, by the provisions of this Law regarding the legal regime of property, its private parts, and common elements, as well as regarding the reciprocal rights and obligations of the co-owners.

c) To private real estate complexes, under the terms established in this Law.

d) To sub-communities, understanding by these those that result when, according to the provisions of the constitutive title, several owners have, under a community regime, for their exclusive use and enjoyment, certain common elements or services endowed with functional or economic unit and independence.

e) To urban conservation entities in cases where their statutes so provide.

CHAPTER II
Of the Regime of Property by Floors or Premises.
Article three.
In the property regime established in Article 396 of the Civil Code, each floor or premises corresponds to:

a) The singular and exclusive right of ownership over a sufficiently delimited space susceptible to independent use, with the architectural elements and installations of all kinds, apparent or not, that are within its limits and serve exclusively the owner, as well as that of the appurtenances expressly indicated in the title, even if located outside the delimited space.

b) Co-ownership, with the other owners of floors or premises, of the remaining common elements, appurtenances, and services.

Each floor or premises shall be assigned a participation share relative to the total value of the property and referred to hundredths thereof. Said share shall serve as a module to determine participation in charges and benefits by reason of the community. Improvements or impairments of each floor or premises shall not alter the assigned share, which may only be varied according to the provisions of Articles 10 and 17 of this Law.

Each owner may freely dispose of their right, without being able to separate the elements that comprise it and without the transfer of enjoyment affecting the obligations derived from this property regime.

Article four.
The action for division shall not proceed to terminate the situation regulated by this law. It may only be exercised by each pro-indiviso owner over a specific floor or premises, limited to it, and provided that the pro-indivision has not been intentionally established for the service or common utility of all owners.

Article five.
The constitutive title of ownership by floors or premises shall describe, in addition to the property as a whole, each one of the former, which shall be assigned a correlative number. The description of the property must state the circumstances required by mortgage legislation and the services and installations it has. The description of each floor or premises shall state its area, boundaries, floor on which it is located, and its appurtenances, such as a garage, attic, or basement.

In the same title, the participation share corresponding to each floor or premises shall be fixed, determined by the sole owner of the building when starting its sale by floors, by agreement of all existing owners, by arbitration award, or by judicial resolution. For its determination, the usable area of each floor or premises in relation to the total of the property, its interior or exterior location, its situation, and the use that is reasonably presumed will be made of the common services or elements shall be taken as a basis.

The title may also contain rules for the constitution and exercise of the right and provisions not prohibited by law regarding the use or destination of the building, its different floors or premises, installations, 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 Property Registry.

In any modification of the title, and saving the provisions on the validity of agreements, the same requirements as for the constitution shall be observed.

Article six.
To regulate the details of coexistence and the adequate use of common services and things, and within the limits established by Law and the statutes, the group of owners may establish internal regime rules that will also bind every owner as long as they are not modified in the manner provided for reaching agreements on administration.

Article seven.

1. The owner of each floor or premises may modify the architectural elements, installations, or services thereof when it does not impair or alter the safety of the building, its general structure, its external configuration or state, or harm the rights of another owner, and must inform the community representative of such works in advance.

In the rest of the property, they may not carry out any alteration, and if they notice the need for urgent repairs, they must communicate it without delay to the administrator.

2. The owner and the occupant of the floor or premises are not permitted to develop 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 noisy, unhealthy, harmful, dangerous, or illegal activities.

The president of the community, on his own initiative or that of any of the owners or occupants, shall require the person carrying out the activities prohibited by this paragraph to immediately cease them, under warning of initiating appropriate judicial actions.

If the offender persists in their conduct, the President, with prior authorization from the Assembly of owners duly convened for that purpose, may bring a cessation action against them, which, in matters not expressly provided for in this article, shall be processed through ordinary proceedings.

Once the complaint is filed, accompanied by proof of the unequivocal request to the offender and the certification of the agreement adopted by the Assembly of Owners, the judge may order the immediate cessation of the prohibited activity as a precautionary measure, under warning of committing an offence of disobedience. They may also adopt any precautionary measures necessary to ensure the effectiveness of the cessation order. The complaint must be directed against the owner and, where applicable, against the occupant of the dwelling or premises.

If the judgment is favourable, it may order, in addition to the definitive cessation of the prohibited activity and the compensation for damages and losses that may arise, the deprivation of the right to use the dwelling or premises for a period not exceeding three years, depending on the gravity of the infringement and the harm caused to the community. If the offender is not the owner, the judgment may declare all their rights related to the dwelling or premises definitively extinguished, as well as their immediate eviction.

3. The owner of each dwelling who wishes to carry out the activity referred to in letter e) of Article 5 of Law 29/1994, of November 24, on Urban Leases, under the terms established in the sectoral tourism regulations, must previously obtain the express approval of the community of owners, under the terms established in section 12 of Article seventeen of this Law.

The president of the community, on his own initiative or that of any of the owners or occupants, shall require the person carrying out the activity of the previous paragraph, without having been expressly approved, to immediately cease it, under warning of initiating appropriate judicial actions, and the provisions of the previous paragraph shall apply.

Article eight.
(Repealed).

Article nine.

1. The obligations of each owner are:

a) To respect the general installations of the community and other common elements, whether for general use or exclusive use of any of the owners, whether or not included in their floor or premises, making adequate use of them and avoiding at all times causing damage or defects.

b) To maintain their own floor or premises and private installations in a good state of conservation, in terms that do not harm the community or the other owners, compensating for the damages caused by their negligence or that of the persons for whom they must answer.

c) To consent in their dwelling or premises to the repairs required by the service of the property and permit in it the indispensable easements required for the execution of works, actions, or the creation of common services carried out or agreed upon according to the provisions of this Law, having the right to be compensated by the community for the damages and losses caused.

d) To allow entry into their floor or premises for the purposes provided in the three preceding paragraphs.

e) To contribute, according to the participation share fixed in the title or as specially established, to the general expenses for the adequate maintenance of the property, its services, charges, and responsibilities that are not susceptible to individualization.

Credits in favour of the community derived from the obligation to contribute to the maintenance of general expenses corresponding to the shares attributable to the due part of the current annual period and the previous three years have a preferential status for the purposes of Article 1,923 of the Civil Code and take precedence, for their satisfaction, over those cited in numbers 3, 4, and 5 of said precept, without prejudice to the preference established in favour of salary credits in the recast text of the Law on the Statute of Workers, approved by Royal Legislative Decree 1/1995, of March 24.

The acquirer of a dwelling or premises under a horizontal property regime, even with a title registered in the Property Registry, is liable with the acquired property itself for the amounts owed to the community of owners for the maintenance of general expenses by previous owners up to the limit of those attributable to the due part of the annual period in which the acquisition takes place and to the previous three calendar years. The floor or premises shall be legally encumbered for the fulfillment of this obligation.

In the public instrument by which the dwelling or premises is transferred, by any title, the transferor must declare being up to date with the payment of the general expenses of the community of owners or state the amount owed. The transferor must provide at this time a certificate regarding the state of debts with the community coinciding with their declaration, without which the granting of the public document cannot be authorized, unless expressly exempted from this obligation by the acquirer. The certificate shall be issued within a maximum period of seven calendar days from its request by the person exercising the functions of secretary, with the approval of the president, who shall be liable, in case of fault or negligence, for the accuracy of the data contained therein and for the damages caused by the delay in its issuance.

f) To contribute, according to their respective participation share, to the provision of the reserve fund that will exist in the community of owners to cover works of conservation, repair, and rehabilitation of the property, the execution of accessibility works included in article ten.1.b) of this law, as well as the execution of accessibility and energy efficiency works included in article seventeen.2 of this law.

The reserve fund, the ownership of which corresponds for all purposes to the community, shall be provided with an amount that in no case may be less than 10 percent of its last ordinary budget.

With charge to the reserve fund, the community may enter into an insurance contract covering damages caused to the property or enter into a permanent maintenance contract for the property and its general facilities.

g) To observe due diligence in the use of the property and in their relations with the other owners and answer to them for the infringements committed and the damages caused.

h) To communicate to the person exercising the functions of secretary of the community, by any means that allows proof of its 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 floor or premises belonging to the community shall be considered the address for summonses and notifications, with those delivered to its occupant having full legal effects.

If a summons or notification to the owner is attempted and it is impossible to carry it out at the place provided for in the previous paragraph, it shall be understood to have been carried out by placing the corresponding communication on the community’s notice board, or in a visible place of general use enabled for that purpose, with a statement expressing the date and reasons for proceeding with this form of notification, signed by the person exercising the functions of secretary of the community, with the approval of the president. The notification made in this form shall produce full legal effects within a period of three calendar days.

i) To communicate to the person exercising the functions of secretary of the community, by any means that allows proof of its receipt, the change of ownership of the dwelling or premises.

Whoever fails to comply with this obligation shall continue to be jointly and severally liable for debts with the community incurred after the transfer jointly with the new owner, without prejudice to the former’s right to claim against the latter.

The provisions of the previous paragraph shall not apply when any of the governing bodies established in Article 13 has become aware of the change of ownership of the dwelling or premises by any other means or by conclusive acts of the new owner, or when such transfer is notorious.

2. For the application of the rules of the previous paragraph, general expenses shall be considered those that are not attributable to one or several floors or premises, without the non-use of a service exempting from compliance with the corresponding obligations, without prejudice to the provisions of Article 17.4.

Article ten.

1. The following actions shall be mandatory and shall not require prior agreement of the Assembly of Owners, whether or not they imply modification of the constitutive title or the statutes, and whether imposed by Public Administrations or requested at the behest of the owners:

a) Works and actions necessary for the adequate maintenance and fulfillment of the duty to conserve 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 ornamental conditions and any others derived from the imposition, by the Administration, of the legal duty of conservation.

b) Works and actions necessary to guarantee reasonable adjustments in matters of universal accessibility and, in any case, those required at the behest of owners in whose dwelling or premises persons with disabilities, or over seventy years of age, live, work, or provide voluntary services, in order to ensure them adequate use of common elements according to their needs, 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 annually charged for them, once subsidies or public aid are deducted, does not exceed twelve ordinary monthly common expenses. The fact that the rest of the cost, beyond the aforementioned monthly payments, is assumed by those who requested them shall not eliminate the mandatory nature of these works.

These works shall also be mandatory when the public aid to which the community may have access reaches 75% of their amount.

c) The occupation of common elements of the building or the private real estate complex during the time that the works referred to in the previous letters last.

d) The construction of new floors and any other alteration of the structure or fabric of the building or common things, as well as the constitution of a real estate complex, as provided for in Article 17.4 of the recast text of the Land Law, approved by Royal Legislative Decree 2/2008, of June 20, which are mandatory as a result of the inclusion of the property in an area of rehabilitation or urban regeneration and renewal action.

e) Acts of material division of floors or premises and their appurtenances to form smaller and independent ones, the increase of their surface area by aggregation of other neighbouring ones in the same building, or their reduction by segregation of a part, carried out voluntarily and at the behest of their owners, when such actions are possible as a result of the inclusion of the property in an area of rehabilitation or urban regeneration and renewal action.

2. Taking into account the mandatory or obligatory nature of the actions referred to in letters a) to d) of the previous paragraph, the following shall proceed:

a) They shall be paid for by the owners of the corresponding community or group of communities, the Assembly’s agreement being limited to the distribution of the relevant levy and to the determination of the terms of its payment.

b) Owners who unjustifiably oppose or delay the execution of orders issued by the competent authority shall be individually liable for the sanctions that may be imposed administratively.

c) The floors or premises shall be encumbered for the payment of expenses derived from the execution of said works or actions under the same terms and conditions as those established in Article 9 for general expenses.

3. Subject to the corresponding administrative authorization regime shall be:

a) The constitution and modification of the real estate complex referred to in Article 26.6 of the recast text of the Land and Urban Rehabilitation Law, approved by Royal Legislative Decree 7/2015, of October 30, in the same terms.

b) When so requested, and according to the regime established in the legislation on territorial and urban planning, with prior approval by the majority of owners that in each case proceeds according to this Law, the material division of floors or premises and their appurtenances, to form smaller and independent ones, the increase of their surface area by aggregation of other neighbouring ones in the same building or their reduction by segregation of a part, the construction of new floors and any other alteration of the structure or fabric of the building, including the enclosure of terraces and the modification of the envelope to improve energy efficiency, or of common things.

In these cases, the consent of the affected owners must be recorded, and the Assembly of Owners, in agreement with them, and according to the majority of owners that in each case proceeds according to this Law, shall determine the compensation for damages and losses that may correspond. The fixing of the new participation shares, as well as the determination of the nature of the works to be carried out, in case of disagreement about them, shall require the adoption of the appropriate agreement by the Assembly of Owners, by an identical majority. In this regard, interested parties may also request arbitration or technical opinion under the terms established by Law.

Article eleven.
(Repealed).

Article twelve.
(Repealed).

Article thirteen.

1. The governing bodies of the community are the following:

a) The Assembly of Owners.

b) The president and, where applicable, the vice-presidents.

c) The secretary.

d) The administrator.

In the statutes, or by majority agreement of the Assembly 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 foregoing.

2. The president shall be appointed from among the owners by election or, subsidiarily, by rotation or drawing of lots. The appointment shall be mandatory, although the designated owner may request their replacement from the judge within one month following their accession to the office, citing the reasons in their favour. The judge, through the procedure established in Article 17.7, will decide summarily what is appropriate, designating in the same decision the owner who should replace the president, where applicable, until a new appointment is made within the period determined in the judicial decision.

Similarly, the judge may be approached when, for any reason, it is impossible for the Assembly to appoint a president for the community.

3. The president shall legally hold the representation of the community, in court and out of court, in all matters affecting it.
4. The existence of vice-presidents shall be optional. Their appointment shall be made by the same procedure established for the designation of the president.

It corresponds to the vice-president, or the vice-presidents in their order, to substitute the president in cases of absence, vacancy, or impossibility of the latter, as well as to assist him in the exercise of his functions under the terms established by the Assembly of Owners.

5. The functions of the secretary and the administrator shall be exercised by the president of the community, unless the statutes or the Assembly of Owners by majority agreement provide for the provision of said positions separately from the presidency.
6. The positions of secretary and administrator may be accumulated in the same person or appointed independently.

The position of administrator and, where applicable, that of secretary-administrator may be exercised by any owner, as well as by natural persons with sufficient professional qualification and legally recognized to exercise said functions. It may also fall on corporations and other legal entities under the terms established in the legal system.

7. Unless the community statutes provide otherwise, the appointment of the governing bodies shall be for a period of one year.

Those designated may be removed from their position before the end of the term by agreement of the Assembly of Owners, convened in an extraordinary session.

8. When the number of owners of dwellings or premises in a building does not exceed four, they may opt for the administration regime of Article 398 of the Civil Code, if the statutes expressly so establish.

Article fourteen.
It corresponds to the Assembly of Owners:

a) To appoint and remove the persons holding the positions mentioned in the previous article and resolve the claims that the owners of the floors or premises formulate against the actions of the former.

b) To approve the plan of foreseeable expenses and income and the corresponding accounts.

c) To approve the budgets and the execution of all repair works on the property, whether ordinary or extraordinary, and to be informed of the urgent measures adopted by the administrator in accordance with the provisions of Article 20.c).

d) To approve or reform the statutes and determine the internal regime rules.

e) To be aware of and decide on other matters of general interest to the community, agreeing on the necessary or convenient measures for the best common service.

Article fifteen.

1. Attendance at the Assembly of Owners shall be in person or by legal or voluntary representation, it being sufficient to prove the latter by a document signed by the owner.

If any floor or premises belongs ‘pro indiviso’ to different owners, they shall appoint a representative to attend and vote at the assemblies.

If the dwelling or premises is in usufruct, attendance and the vote shall correspond to the bare owner, who, unless otherwise stated, shall be deemed represented by the usufructuary, the delegation being express when it concerns the agreements referred to in rule one of Article 17 or extraordinary and improvement works.

2. Owners who, at the time the assembly begins, are not up to date with the payment of all due debts with the community and have not judicially challenged them or proceeded to judicial or notarial consignment of the owed amount, may participate in its deliberations but shall not have the right to vote. The minutes of the Assembly shall reflect the owners deprived of the right to vote, whose person and participation share in the community shall not be counted for the purposes of reaching the majorities required by this Law.

Article sixteen.

1. The Assembly of Owners shall meet at least once a year to approve budgets and accounts and on other occasions as considered convenient by the president or requested by a quarter of the owners, or a number of owners representing at least 25% of the participation shares.
2. The calling of Assemblies shall be made by the president and, failing that, by the promoters of the meeting, indicating the matters to be dealt with, the place, day, and time of the meeting in first or, where applicable, second call, making the summons in the manner established in Article 9. The call shall contain a list of the owners who are not up to date with the payment of due debts to the community and shall warn of the deprivation of the right to vote if the circumstances foreseen in Article 15.2 occur.

Any owner may request that the Assembly of Owners study and pronounce on any topic of interest to the community; to this end, they shall send a letter, clearly specifying the matters they ask to be discussed, to the president, who shall include them in the agenda of the next Assembly held.

If the majority of owners representing, in turn, the majority of the participation shares do not attend the Assembly meeting in the first call, a second call of the same shall proceed, this time without a «quorum».

The Assembly shall meet in the 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 shall be called again, according to the requirements established in this article, within the eight calendar days following the Assembly not held, in which case the summons shall be sent with a minimum notice of three days.

3. The summons for the annual ordinary Assembly shall be made at least six days in advance, and for extraordinary Assemblies, as much in advance as possible so that it can come to the attention of all interested parties. The Assembly may validly meet even without the president’s call, provided that all owners are present and so decide.

Article seventeen.
Agreements of the Assembly of Owners shall be subject to the following rules:

1. The installation of common infrastructures for access to telecommunications services regulated in Royal Decree-Law 1/1998, of February 27, on common infrastructures in buildings for access to telecommunications services, or the adaptation of existing ones, as well as the installation of common or private systems for the use of renewable energies, including aerothermia and geothermal energy, or of the infrastructures necessary to access new collective energy supplies, may be agreed, at the request of any owner, by one-third of the members of the community who represent, in turn, one-third of the participation shares.

The community may not pass on the cost of installing or adapting said common infrastructures, nor those derived from their subsequent conservation and maintenance, to those owners who did not expressly vote in favour of the agreement in the Assembly. 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 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 previous paragraph regarding conservation and maintenance costs, the new installed infrastructure shall be considered, for the purposes established in this Law, a common element.

2. Without prejudice to the provisions of Article 10.1.b), the execution of works or the establishment of new common services aimed at removing architectural barriers that hinder access or mobility for persons with disabilities and, in any case, the establishment of lift services, even when they imply the modification of the constitutive title or the statutes, shall require the favourable vote of the majority of owners who, in turn, represent the majority of the participation shares.

When agreements for the execution of accessibility works are validly adopted, the community shall be obliged to pay the expenses, even if their annual charged amount exceeds twelve ordinary monthly common expenses.

The execution of works or actions that contribute to the improvement of energy efficiency provable through an energy efficiency certificate for the building or the implementation of renewable energy sources for common use, including where applicable the modification of the building envelope, as well as the request for aid and subsidies, loans, or any type of financing by the community of owners from public or private entities to carry out such works or actions, shall require the favourable vote of the simple majority of owners who, in turn, represent the simple majority of the participation shares, provided that their annual charged amount, once subsidies or public aid are deducted and financing is applied where applicable, does not exceed the amount of twelve ordinary monthly common expenses. The dissenting owner shall not have the right recognized in section 4 of this article, and the cost of these works, or the amounts necessary to cover the loans or financing granted for this purpose, shall be considered general expenses for the purposes of applying the rules established in letter e) of Article nine.1 of this law.

3. The establishment or suppression of porter, concierge, surveillance services, or other common services of general interest, whether or not they imply modification of the constitutive title or the statutes, shall require the favourable vote of three-fifths of the total owners who, in turn, represent three-fifths of the participation shares.

The same regime shall apply to the lease of common elements that do not have a specific use assigned in the property and the establishment or suppression of equipment or systems, not covered in section 1, aimed at improving the energy or water efficiency of the property. In the latter case, agreements validly adopted according to this rule bind all owners. However, if the equipment or systems have private use, the favourable vote of one-third of the members of the community who represent, in turn, one-third of the participation shares shall suffice for the adoption of the agreement, applying, in this case, the cost recovery system established in said section.

4. No owner may demand new installations, services, or improvements not required for the adequate conservation, habitability, safety, 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 shares, agreements are validly adopted to carry out innovations, new installations, services, or improvements not required for the adequate conservation, habitability, safety, and accessibility of the property, not enforceable, and whose installation cost exceeds the amount of three ordinary monthly common expenses, the dissenting party shall not be obliged, nor shall their share be modified, even in the case that they cannot be deprived of the improvement or advantage. If the dissenting party wishes, at any time, to partake of the advantages of the innovation, they must pay their share of the execution and maintenance costs, duly updated by applying the corresponding legal interest.

Without prejudice to the provisions of the preceding paragraphs, the material division of floors or premises and their appurtenances, to form smaller and independent ones; the increase of their surface area by aggregation of other neighbouring ones in the same building or their reduction by segregation of a part; the construction of new floors and any other alteration of the structure or fabric of the building, including the enclosure of terraces or the modification of common things, shall be subject to the favourable vote of three-fifths of the total owners who, in turn, represent three-fifths of the participation shares.

Innovations that render any part of the building unusable for the use and enjoyment of an owner may not be carried out without their express consent.

5. The installation of an electric vehicle charging point for private use in the building’s car park, provided it is located in an individual garage space, shall only require prior communication to the community. The cost of said installation and the corresponding electricity consumption shall be fully assumed by the interested party or parties directly involved.
6. Agreements not expressly regulated in this article that involve the approval or modification of the rules contained in the constitutive title of the horizontal property or in the community statutes shall require, for their validity, the unanimity of the total owners who, in turn, represent the total participation shares.
7. For the validity of other agreements, the vote of the majority of the total owners who, in turn, represent the majority of the participation shares shall suffice. In a second call, agreements adopted by the majority of those present shall be valid, provided that this majority represents, in turn, more than half the value of the shares of those present.

When the majority cannot be achieved by the procedures established in the preceding paragraphs, the Judge, at the request of a party filed within one month following the date of the second Assembly, and hearing the opposing parties in a hearing after prior summons, shall decide in equity what is appropriate within twenty days, counted from the request, making a ruling on the payment of costs.

8. Except in the cases expressly foreseen in which the cost of services cannot be passed on to those owners who did not expressly vote in favour of the agreement in the Assembly, or in cases where the modification or reform is made for private use, favourable votes shall be counted as those of owners absent from the Assembly, duly summoned, who, once informed of the agreement adopted by those present, according to the procedure established in Article 9, do not express their disagreement by communicating to the person exercising the functions of secretary of the community within a period of 30 calendar days, by any means that allows proof of receipt.
9. Agreements validly adopted according to the provisions of this article bind all owners.
10. In case of disagreement about the nature of the works to be carried out, the Assembly of Owners shall decide what is appropriate. Interested parties may also request arbitration or technical opinion under the terms established by Law.
11. Levies for the payment of improvements carried out or to be carried out on the property shall be borne by whoever is the owner at the time the amounts affected by the payment of said improvements become claimable.
12. The express agreement approving, limiting, conditioning, or prohibiting the exercise of the activity referred to in letter e) of Article 5 of Law 29/1994, of November 24, on Urban Leases, under the terms established in the sectoral tourism regulations, whether or not it implies modification of the constitutive title or the statutes, shall require the favourable vote of three-fifths of the total owners who, in turn, represent three-fifths of the participation shares. Likewise, this same majority shall be required for the agreement establishing special expense quotas or an increase in the participation in the common expenses of the dwelling where said activity is carried out, provided that these modifications do not imply an increase exceeding 20%. These agreements shall not have retroactive effects.

Article eighteen.

1. Agreements of the Assembly of Owners may be challenged before the courts in accordance with the provisions of general procedural legislation, in the following cases:

a) When they are contrary to the law or the statutes of the community of owners.

b) When they are seriously detrimental to the interests of the community itself for the benefit of one or several owners.

c) When they cause serious harm to an owner who has no legal obligation to bear it or have been adopted with abuse of rights.

2. Owners who have saved their vote in the Assembly, those absent for any reason, and those who have been unduly deprived of their right to vote shall be legitimized to challenge these agreements. To challenge the agreements of the Assembly, the owner must be up to date with the payment of all due debts with the community or previously proceed to judicial consignment of them. This rule shall not apply to the challenge of Assembly agreements relating to the establishment or alteration of the participation shares referred to in Article 9 among the owners.
3. The action shall lapse three months after the agreement is adopted by the Assembly of Owners, unless it concerns acts contrary to the law or the statutes, in which case the action shall lapse after one year. For absent owners, said period shall be counted from the communication of the agreement according to the procedure established in Article 9.
4. The challenge of Assembly agreements shall not suspend their execution, unless the judge so orders as a precautionary measure, at the request of the claimant, after hearing the community of owners.

Article nineteen.

1. Agreements of the Assembly of Owners shall be recorded in a minute book certified by the Property Registrar in the manner to be determined by regulation.
2. The minutes of each meeting of the Assembly of Owners shall express at least the following circumstances:

a) The date and place of celebration.

b) The author of the call and, where applicable, the owners who had promoted it.

c) Its ordinary or extraordinary nature and the indication of its celebration in first or second call.

d) List of all attendees and their respective positions, as well as the represented owners, indicating, in any case, their participation shares.

e) The agenda of the meeting.

f) The agreements adopted, indicating, if relevant for the validity of the agreement, the names of the owners who voted for and against them, as well as the participation shares they respectively represent.

3. The minutes shall be closed with the signatures of the president and the secretary at the end of the meeting or within ten calendar days following. From their closure, the agreements shall be executive, unless the Law provides otherwise.

The minutes of the meetings shall be sent to the owners according to the procedure established in Article 9.

Defects or errors in the minutes may be corrected provided that the minutes unequivocally express the date and place of celebration, the attending owners, present or represented, and the agreements adopted, indicating the votes for and against, as well as the participation shares they respectively represent, and are signed by the president and the secretary. Said correction must be made before the next meeting of the Assembly of Owners, which must ratify the correction.

4. The secretary shall keep the minute books of the Assembly of Owners. They shall also keep, for a period of five years, the calls, communications, powers of attorney, and other relevant documents of the meetings.

Article twenty.

1. It corresponds to the administrator:

a) To ensure the good running of the building, its installations, and services, and to make the appropriate warnings and admonitions to the owners for this purpose.

b) To prepare with due notice and submit to the Assembly the plan of foreseeable expenses, proposing the necessary means to meet them.

c) To attend to the conservation and maintenance of the building, ordering the repairs and measures that are urgent, immediately reporting them to the president or, where applicable, to the owners.

d) To execute the agreements adopted on matters of works and make the payments and collect the collections that are appropriate.

e) To act, where applicable, as secretary of the Assembly and keep the community’s documentation available to the owners.

f) All other powers conferred by the Assembly.

Article twenty-one. Non-payment of common expenses, conventional preventive measures, judicial claim of debt, and mediation and arbitration.

1. The assembly of owners may agree on dissuasive measures against delinquency for the time that remains in said situation, such as the establishment of interest rates higher than the legal interest or the temporary deprivation of the use of services or facilities, provided that they cannot be deemed abusive or disproportionate or affect the habitability of the properties. These measures may never have retroactive character and may be included in the community statutes. In any case, credits in favour of the community shall accrue interest from the moment the corresponding payment should be made and it is not made effective.
2. The community may, without prejudice to the use of other judicial procedures, claim from the person obliged to pay all amounts owed to it in the concept of common expenses, whether ordinary or extraordinary, general or individualizable, or reserve fund, and through the special monitoring process applicable to communities of owners of properties under horizontal property regime. In any case, the registered owner may be sued, for the purpose of enforcing execution on the property registered in their name. The professional secretary-administrator, if so agreed by the assembly of owners, may judicially enforce the obligation to pay the debt through this procedure.
3. To request the claim through the monitoring procedure, the complaint must be accompanied by a certificate of the agreement liquidating the debt issued by the person acting as secretary of the community with the approval of the president, unless the former is a secretary-administrator with the necessary and legally recognized professional qualification who will not professionally intervene in the judicial claim of the debt, in which case the president’s signature will not be necessary. This certificate must state the amount owed and its breakdown. In addition to the certificate, the initial request of the monitoring process must be accompanied by the supporting document proving that the debtor has been notified, which may also be done subsidiarily on the notice board or visible place of the community for a period of at least three days. The approved fees that accrue until the notification of the debt may be included in the initial request of the monitoring procedure, as well as all expenses and costs entailed by the claim of the debt, including those derived from the intervention of the secretary-administrator, which shall be borne by the debtor.
4. When the debtor opposes the initial request of the monitoring process, the community may request the preventive attachment of sufficient assets of the debtor, to meet the claimed amount, interest, and costs. The court shall, in any case, order the preventive attachment without the creditor needing to provide a bond. However, the debtor may avoid the attachment by providing the guarantees established in the Procedural Law.
5. When the professional services of a lawyer and/or solicitor are used in the initial request of the monitoring process to claim the amounts owed to the Community, the debtor must pay, in any case subject to the limits established in the third paragraph of Article 394 of the Civil Procedure Law, the fees and rights accrued by both for their intervention, whether the debtor complies with the payment request or does not appear before the court, including execution costs, where applicable. In cases where there is opposition, the general rules on costs shall be followed, although if the community obtains a judgment entirely favourable to its claim, the lawyer’s fees and solicitor’s rights derived from their intervention shall be included therein, even if it was not mandatory.
6. The claim for community expenses and the reserve fund or any question related to the obligation to contribute to them may also be the subject of mediation-conciliation or arbitration, according to applicable legislation.

Article twenty-two.

1. The community of owners shall be liable for its debts to third parties with all funds and credits in its favour. Subsidiarily and after a payment request to the respective owner, the creditor may proceed against each owner who had been party to the corresponding process for the share corresponding to them in the unsatisfied amount.
2. Any owner may oppose execution if they prove that they are up to date with the payment of all due debts with the community at the time of making the request referred to in the previous paragraph.

If the debtor pays at the time of the request, the costs incurred up to that moment shall be borne by them in the proportional share that corresponds to them.

Article twenty-three.
The horizontal property regime is extinguished:

First. By the destruction of the building, unless otherwise agreed. Destruction shall be deemed to have occurred when the cost of reconstruction exceeds fifty percent of the value of the property at the time of the incident, unless the excess of said cost is covered by insurance.

Second. By conversion into ordinary property or co-ownership.

CHAPTER III
Of the Regime of Private Real Estate Complexes
Article twenty-four.

1. The special property regime established in Article 396 of the Civil Code shall be applicable to those private real estate complexes that meet the following requirements:

a) Being composed of two or more independent buildings or plots whose main purpose is housing or premises.

b) The owners of these properties, or of the dwellings or premises into which they are horizontally divided, participating, as inherent to said right, in an indivisible co-ownership over other real estate elements, roads, facilities, or services.

2. The private real estate complexes referred to in the previous paragraph may:

a) Constitute themselves as a single community of owners through any of the procedures established in the second paragraph of Article 5. In this case, they shall be subject to the provisions of this Law, which shall be fully applicable to them.

b) Constitute themselves as a grouping of communities of owners. To this effect, it shall 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 form it, previously authorized by majority agreement of their respective Assemblies of Owners. The constitutive title shall contain the description of the real estate complex as a whole and of the common elements, roads, facilities, and services. It shall also fix the participation share of each of the integrated communities, which shall be jointly liable for their obligation to contribute to the maintenance of the general expenses of the grouped community. The title and statutes of the grouped community shall be registrable in the Property Registry.

3. The grouping of communities referred to in the previous paragraph shall enjoy, for all purposes, the same legal status as communities of owners and shall be governed by the provisions of this Law, with the following specialities:

a) The Assembly of Owners shall be composed, unless otherwise agreed, of the presidents of the communities integrated into the grouping, who shall hold the representation of the group of owners of each community.

b) The adoption of agreements for which the law requires qualified majorities shall require, in any case, the prior obtaining of the majority in question in each of the Assemblies of Owners of the communities that make up the grouping.

c) Unless otherwise agreed by the Assembly, 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 extends only to the real estate elements, roads, facilities, and common services. Their agreements may not in any case impair the powers corresponding to the governing bodies of the communities of owners integrated into the grouping of communities.

4. Private real estate complexes that do not adopt any of the legal forms indicated in section 2 shall be subject, supplementarily with respect to the pacts established among the co-owners, to the provisions of this Law, with the same specialities indicated in the previous section.

First Additional Provision.

1. Without prejudice to the provisions adopted by the Autonomous Communities in the exercise of their powers, the constitution of the reserve fund regulated in Article 9.1.f) shall conform to the following rules:

a) The fund must be constituted at the time the Assembly of Owners approves the ordinary budget of the community corresponding to the annual period immediately following the entry into force of this provision.

New communities of owners shall constitute the reserve fund when approving their first ordinary budget.

b) At the time of its constitution, the fund shall be provided with an amount not less than 2.5% of the ordinary budget of the community. To this effect, owners must previously make the necessary contributions based on their respective participation share.

c) When the ordinary budget corresponding to the annual period immediately following that in which the reserve fund is constituted is approved, its allocation must reach the minimum amount established in Article 9.

2. The allocation of the reserve fund may not be less, at any time during the budget year, than the established legal minimum.

Amounts withdrawn from the fund during the budget year to cover the expenses of the works or actions included in Article 10 shall be counted as an integral part thereof for the purpose of calculating its minimum amount.

At the beginning of the following budget year, the necessary contributions shall be made to cover the amounts withdrawn from the reserve fund as indicated in the previous paragraph.

Second Additional Provision.
An owner of a dwelling who is carrying out the activity referred to in letter e) of Article 5 of Law 29/1994, of November 24, on Urban Leases, prior to the entry into force of the Organic Law on efficiency measures of the Public Justice Service, who has previously adhered to the sectoral tourism regulations, may continue to carry out the activity under the conditions and deadlines established therein.

First Transitional Provision.
This law shall govern all communities of owners, regardless of the time they were created and the content of their statutes, which may not be applied in contradiction with the provisions herein.

Within a period of two years from the publication of this law in the «Official State Gazette», communities of owners must adapt their statutes to the provisions hereof that are in contradiction with its precepts.

After two years, any owner may judicially request the adaptation provided for in this provision by the procedure indicated in the second number of Article sixteen.

Second Transitional Provision.
In current statutes regulating property by floors, in which the right of first refusal and redemption is established in favour of the owners, they shall be deemed modified in the sense of rendering such right ineffective, unless, in a new assembly, and by a majority representing at least 80% of the owners, the maintenance of said rights of first refusal and redemption in favour of the members of the community is agreed.

Final Provision.
Any provisions opposing what is established in this law are hereby repealed.

Given at the Palacio de El Pardo on July twenty-first, nineteen hundred sixty.