Question  1

When there are two owners in an apartment public deed and one of them is chosen as president. Who is the person to assume such position? The oldest one or the one included as first person in the public deed? (Santiago). 

The person shown in first place in the apartment public deed shall be the person to assume the position for president.

Question 2

Is it possible to modify the criteria used to determine the calculation of the monthly fee in the neighborhood council? How should it be done? (Martha).  

In order to modify it, we must ask the neighborhood council president to include it as a point to talk about in the next neighborhood council agenda whether the new distribution of the fee considered is fair. The unanimous agreement of all the neighbors is required for the proposal to be approved. If the council decides not to change the situation, it is possible to refute the agreement before a court of law within the following three months after such decision has been taken.

Question 3

I own two apartments in one same building that are communicated and I think it is unfair to pay a double community fee. Could anybody clarify my community rights? (Maria Pilar).

There are two ways to calculate the community fees: either we divide equally among all the neighbors or we pay equally according to the participation coefficient. If in your community, people have opted for this second alternative, and you think it is unfair, you may ask to modify the criteria, but to do so, you need all the neighbors´ unanimous agreement.

Question 4

I own an apartment on the ground floor in a building where people wish to install an elevator. The community wants me to also pay for these works. Am I required to do so? (Manuel).

In case the lift installation agreement is valid, that is to say, with the vote in favor of 3 / 5 of the owners, who at the same time, represent 3 / 5 of the participation shares, all the neighbors are entailed to it. This is so, because the jurisprudence considers that these works should not be regarded as improvement works, but as works required for the building. That is why; everybody should contribute according to their participation share, even if in practice, they will not use it.

It is even considered that when the co-proprietors pay different amounts according to the apartment they live in, if the contribution normal status is altered, then the agreement must be unanimously adopted, because it alters the constitutive holding title rules of the horizontal property and / or the neighborhood statues.

Question 5

If an apartment owner on a ground floor rejects to install an elevator? (Cristina)

If a group of neighbors wants to install an improvement element, as for example an elevator and the neighbors on the ground floor oppose to it, the neighborhood council may force them to pay part of the expenses if these exceed what it would correspond to three neighborhood receipts all together. However, the elevator may be installed if a simple majority of the owners approve it; also if a single handicapped neighbor proposes such decision and is approved by 3 / 5 of the owners, since it deals with the suppression of an architectonic barrier. In this case, all the neighbors will be entitled to pay for it.

Question 6

I am the president of my neighborhood and one neighbor is going to sell his apartment. Do I have to give him back the part corresponding to the community funds? (Rodolfo).

No, because the money included in the community funds are not for each one of you according to the amount given in order to create it, but they belong to the community, independently of who the people constituting it are. This is so, except for the case where the statutes include some other kind of distribution. What you should do certainly regarding the neighbor selling the apartment is giving him a certificate of his status concerning the community accounts, because he will have to present it before a notary when the sales contract is signed.

Question 7

I have had an apartment rented for many years, and one of the clauses indicates that the tenant will pay the corresponding apartment and building repairs. Now, he does not want to pay the repair works. What should I do? (Iñigo). 

First, we should to take a look at the rental contract and check how old it is, we talk here in general terms. The required repairs, that is to say, the ones aiming at improving the house in order to keep it in good shape are on the owner´s account, except for the case where the tenant and the owner have agreed otherwise at the time of signing the contract. You indicated us that in the contract, these repairs are on the tenant´s account, as a consequence, it is an agreement on behalf of both parties. Therefore the fact of not paying these quantities is a failure to fulfill the contract. The first thing to do is to inform him reliably about his obligation to pay the quantities due by sending him a certified letter with acknowledgement of receipt. If after a prudential period of time, he has not paid, then you begin the required legal procedure with the purpose of canceling the rental contract or of claiming the mentioned quantities due, as these are expenses agreed to be paid by the tenant and it has not been the case.

Jueves 09 marzo

Question 8

I asked the community of owners for a permission to enclose my terrace;  since there other ones enclosed as well. However, I was not given such opportunity as these works were done without any permission. What can I do? (Antonio).

On top of asking for the construction permit at the City Council Administration Office, the Works affecting the building façade require the community authorization. The facts of others not having complied with this obligation does not authorize the others to act equally. What you can do is to refute before a court of justice the agreement whereby you are not allowed the permission by claiming that it is arbitrary and unjustified, since it does not affect the building aesthetic as there are already other terraces enclosed.

Question 9

I own a store with an independent Access to the building where it is located. How much do I have to pay in terms of community services? Can the community council request from me any payment delayed if I had not paid before? (Paula)

Paying the participation fee according to the square meters owned and the services to pay by all neighbors are the two means available to fix the participation fee regarding the community expenses. Except for the case where the building includes only two similar grounds, the participation fee is the most logical criterion.

We have to bear in mind, that if we accept this formula, the services every neighbor enjoys are the ones taken into account, since sometimes, in order to fix the surface square meters, we don´t consider the surface to clean or the one corresponding to the elevator. It is appropriate to ask the community president through a written document to decide about the fee to pay and clarify how it has been specified for the next meeting

Question 10

I have an apartment and the public deed says that there is a garage and storage as inseparable annexes. What do these annexes mean? (Ana María). 

They are complementary property elements that are physically separate from each other, (either from an apartment or from a store), obviously, these annexes have no individual property coefficient.

It may happen that in the case of a garage or storage, there is a participation coefficient, in this case, it would not be considered an annex.

Question 11

In my community, we have some coexistence problems due to the use of the common areas. Can we adopt an Internal Regime Regulation? (Emilio)

The adoption of this kind of regulations is voluntary. It is enough for the Owner´s Council to adopt some kind of occasional agreement by means of the quorum as it is stated in the article 17.3 of the Horizontal Mortgage Law as long as these agreements are included in the Minutes Book.

Question 12

What role does the participation fee play? (Ana Belén)

If the whole community gives it a value of 100 and is equivalent to the total number of useful m2 of the community, it is enough to divide it one by one in order to have the value for each m2, then multiply this figure times the number of meters for each property in order to obtain the participation fee, obviously, the sum of the fees should reach 100.

This way, it is said in section 2º of the article 3 of the Horizontal Mortgage Law “Such fee will work as a model to determine the participation in the charges and benefits of the community”

Question 13

Can we divide the apartment where we live into two independent apartments? Is it necessary to ask the community council for permission? (Tomás).

If the division is outside and does not affect the community horizontal property provided it does not affect any common element (for example the access gate continues to be a single gate), it is not necessary to ask for any permission. However, if it is about configuring new components of the horizontal property, then an unanimous agreement by the Council is required since it is necessary to determine the new participation fee, on top of being necessary to draft a public deed including this division as well and later register it in the Property Registry.

Question 14

I have bought a store that is immediately below my house. Can I link it to my apartment or do I need any permission from my community? (Sonia).

Any connection between your apartment and your shop, we suppose that it will be necessary to open a hole through the roof – floor frame of the store up to the house, therefore, it affects a common element of the community. We need the community unanimous agreement according to the articles 7.1, 12 and 17 of the Horizontal Mortgage Law.

Question 15

We have bought an apartment that is beside another I own. Can I link them by demolishing  the partition wall between them?  (Tania)

If we suppose that the partition wall separating them does not work as a loading wall of the building, you may demolish it and link both apartments since the union of the two apartments does not affect the distribution of the all parts within the community. There is no need to ask for any permission, since you will have to pay the amounts due of both apartments. If at the end, you wish a single property with a single registration, then you will need the unanimous vote of the community according to the Law on Horizontal Property.

Question 16

The terrace located over my apartment has leaked water to my apartment. Who should pay for the damage caused. My neighbor or the community? (Virginia).

If the leakage caused is consequence of a lack of water tightness in the terrace water drainpipe, it is the community to get in charge of the repairs for the damage caused in your apartment.

But if the leakage is consequence of a lack of cleaning and maintenance of the blocked drainpipe, it will be the terrace owner or beneficial owner the one to get in charge of the damage caused in your apartment.

Friday

Question 17

¿Can the common elements be used without limiting the use of these common elements by the remaining owners of the community? (David)

Examples that may clarify this concept could be: the enclosure of a piece of corridor in order to use it in a particular way, use of the swimming pool outside the schedule set up in the community, a roof canopy put on a common terrace…

When one of these things should be turned to this original status by the offender. In the cases of serious or persistent situations, there is the possibility for the community to begin with the required legal actions included in the art. 7.2.

Question 18

In my community; one owner has rented his apartment. Who should we claim the payment of the community receipt? to the owner or to the tenant? (José Francisco).

The community relations are always set with the owner, who continues to be subject to the corresponding rights and obligations, even when the rental contract has agreed the community expenses to be included in the rental.

Question 19

One apartment has been rented in my community and the tenant asks to carry out some installation works? Can he do it? (Araceli).

According to the last question same argument, the answer is no. It is the owner who should ask the community to carry out such Works.

Question 20

Can an owner modify a terrace, for example, enclose it, and ask for a modification of his participation fee fixed in the constitutive title? (Laura)

Any modification of the participation fees requires an unanimous agreement by the Owners´ Council, because each neighbor´s fee modification has an automatic impact on the fees of all the remaining ones since the sum of the mentioned fees should be always 100.