All you need to know about the Spanish Horizontal Law
We tell you everything you need to know about Spanish Horizontal Law to be able to correctly manage a property or a community of neighbours.
I suppose an ex-pat who just bought a nice apartment near the beach may be astounded to find out that a community owner may entail some thorny business. Ignorance of these areas’ rules and regulations can cause frequent friction and disputes.
He or she may come home one day to find that someone has installed clotheslines right in the middle of the very nice internal patio. The communal roofs have been converted into private terraces; gardens transformed into football pitches etc.
Unpleasant clashes between co-owners
Common areas are usually a source of conflict for the neighbouring communities. So much so that often the problems arising from their use and enjoyment may end up in unpleasant clashes.
Frequently, the abuses of the use of these common areas are due to the lack of knowledge of the communities of owner’s rules and legislation.
The problem may start when someone who commenced as a nice friendly neighbour at a specific moment, uses a particular common area for their own particular interests. Mind you, they are in their right, be known that this practice is absolutely legal, but with nuances.
Prevent greater evils
The Spanish Horizontal Law and Article 396 of the Civil Code, allow a single neighbour to enjoy certain common areas, but always with respect for other residents and the rules of the community, which should reflect the privileges and the consequences of its enjoyment.
To prevent greater evils, I recommend implementing restrictions on the use of common areas as soon as the first General Annual Meeting take place, otherwise, some neighbours may think that the pool, for example, belongs to them, showing a complete disregard for the interests of the rest of owners.
That is why the norms agreed upon previously in a General Annual Meeting or the regulations that perhaps may have been incorporated in the urbanization bylaws by the property developer should be broadly displayed around the pool or common areas and if possible in various languages, depending on the nationalities of the owners. This simple solution could obviate a lot of headaches later on.
Any owner wishing to make a particular use of a common area of the estate or urbanization must request it from the community and this be incorporated in the bylaws if so approved by the General Meeting.
To release any common space for private use, the applicant shall communicate it in writing for inclusion in the agenda of the next GM, which will require the unanimous vote of the owners. Once approved, the change must be incorporated in the deeds before a notary and registered in the land register.
Always obtain professional advice first
In any case, I strongly recommend obtaining professional advice from a solicitor or property manager before any approval is considered, as normally these sorts of changes could set into action all sorts of cumbersome repercussions.
When a dispute cannot be resolved through negotiation, community owners and neighbours can go to court or request arbitration, provided both parties are in agreement.
Concerning the invasion of common areas, the Horizontal Property Act provides means to combat this sort of event. To do this, a GM must be organised, empowering the President to request in writing to the offenders, and finally, if necessary to demand the owner via court action.
This could be the case of an owner with a car larger than the average parking space who persistently invades the neighbours. According to Article 394 of the Civil Code, each owner can enjoy any common areas provided that do not harm the community’s interest and prevent other neighbours from using it too.
In covered garages, for instance, it is considered common areas the driveways, and spaces to carry out manoeuvres but not the parking lot itself. Therefore, when a situation affects any resident first it is advisable to politely contact the person who breaches the norm and expose the problem. In case no satisfaction is obtained from the neighbour, the administrator should be approached to include this issue in the agenda of the next GM to demand the termination of the over-extended use.
If, after a time, the neighbour does not change his attitude, the only alternative is that of civil court action. The demand may be brought by the community or by the affected resident/s themselves. If you opt for the courts of justice, it is recommended to ask an expert (normally a notary) to report or testify about the existence of this infringement to the judge.
Spanish Horizontal Law
Which are the common areas or elements of a building or urbanization?
Generally, they are the following, although on some occasions there may be exceptions due to the idiosyncrasies of the building itself.
- Floor slabs, overhangs, foundations and roofs.
- Structural elements such as pillars columns, beams, slabs and load-bearing walls.
- Facades, including their finishes, balconies and windows, including their aesthetics or configuration, the enclosing shell elements comprising them and their external finishes.
- Entrance hall, stairs, corridors, stairs, courtyards, wells and cabinets intended for lifts, tanks, meters, installations or other services or common facilities.
- Lifts and installations, water pipes and drainage pipes for and for the supply of water, gas or electricity, and now days any installation for the common use of solar energy.
- Installations of sanitary hot water, heating, air conditioning, ventilation or exhaust fumes.
- Detection and fire prevention installations.
- Electronic door entry and other security within the building or external areas, as well as the collective antennas and other facilities for audio-visual services or telecommunications, all of these services up to the line of the estate boundary.
Small Communities and their special problems
The common denominators of small Communities of Owners are as follows: old buildings with old neighbours who are known by everyone pass away to be replaced by young newcomers. In this context, the main source of conflict is as in most occasions a question of money, yes, money makes the world go round and communities go smoothly but the lack of it only conveys problems.
The most common problems in real estate with few neighbours arise especially at the time of a major technical breakdown of an essential installation service such as a plumbing pipe, the lift, a falling cornice etc representing a major setback, especially for those on a low income and are obviously reluctant to invest in maintenance and reforms. In addition, due to the few neighbours in the building, each must pay more to cover expenses; hence it is avoided while it is possible. So when the problem arises everyone trembles since probably it will require a major reform such as repairing a façade, or the roof with an unexpected expense that most cannot afford.
The President is in charge
In an attempt to save money, the neighbours are guilty of neglect and have often postponed necessary reforms, for example, damage to the roof structure, which has remained unrepaired for years until finally, the damage is such that it is necessary to change it completely.
In addition, many of these Communities do not have contracted a professional property manager, so it is the elected President who is in charge to keep up to date with the accounts and to take appropriate actions against those owners who have not kept up with Community expenses. It is not easy to be the president of a Community of Owners and keep up to date with all bills on water, cleaning, landscaping, maintenance, managing the necessary paperwork with local authorities etc.
It is necessary to be knowledgeable and invest much time in these efforts. The Horizontal Property Law, which governs the communities of owners, establishes that the President is responsible for all this, even though it can be delegated to a property manager (administrador de fincas) paid by all proprietors, an option that I strongly advise.
Another of the most common problems in real estate with few neighbours is an owner’s late payment of community expenses. What to do before a neighbour does not pay what it is owed? No time limits are laid down by law, so the margin granted to this neighbour depends on each community. In any case, it is usually first to claim the debt in writing and from three pending receipts.
How are the community expenses shared?
The law clearly lays down how the costs in the community must be dealt with: the deeds of each property provide a coefficient of participation by the owner according to the covered area of actual floor space of the property, the orientation and its use (commercial units, housing, parking lots). There are cases where a community of owners have exempted an owner from certain payments. For example, a commercial unit with its own entrance wouldn’t pay the lift or cleaning costs of the main entrance to the building.
The biggest problem arises when a new owner lands in a community where neighbours have known each other for a lifetime; they have no idea about the Horizontal Law, do not have records of their general annual meetings and have agreed to share all expenses on equal parts. In this case, the newcomer has the right to challenge that decision and contribute to expenses according to the floor area ratio.
Rising problems….Lifts.
The most controversial decisions in small communities arise with the agreement of common elements, the modification of the exterior of the building or the installation of a much-needed lift required by law in a building with more than four plants.
As a general rule, all building residents are obliged to pay for the lift, if the majority want to install one. However, I have seen all sorts of odd agreements, for example, an agreement with owners of lower floors so that they allow some necessary work to be done on their property and excluding them from laying any money for the works in exchange for allowing the access of some installation though their property. I have also seen that the lift is restricted to residents who have paid for it and who pay for its maintenance so owners have keys giving access to the lift.
Let’s take for instance the usual leak on the ceiling.
Who will pay for it?
Who has to fix it? And above all, who will pay for it? When in doubt as to whether the leak is from a common area or not the best way is that a technical report should determine the source of the filtration. If the leak comes from the roof, or any other common element belonging to the building, all owners must pay their proportionate share, although usually it is covered by insurance on the property or it should be covered by the unforeseen expenses fund.
It is advisable and prudent that the community of owners should have at least 5% of the total annual budget for possible unforeseen expenses or any unexpected problem, and believe me in all buildings sooner or later their unforeseen problems and this percentage of probability is increased geometrically with the age of the building or property development.
Coming back to the origins of the filtration, if this proceeds from a concrete slab and affects the neighbour below for example, the neighbour above is normally accountable for the expense of fixing it up or his insurance.
Five tips to avoid problems in communities of owners.
I recommend five main tips to help you solve most problems within the community of owners before they occur.
- Try to understand the Horizontal Property Law, updated in 1999. If you don’t read Spanish have translated the main parts or chapters.
- Don`t wait to have a problem setting up a community of owners. Sometimes in buildings or property developments with few owners believe that if there is no community of owners there will be fewer expenses to worry about and that is so, until there is a major problem then it is extremely difficult to get everyone to agree to constitute a community at that particular moment or soon after when the problem has taken place. Creating a community of owners is mandatory when there are more than four owners.
- Do have at least the compulsory annual meeting and keep a record of all meetings. I know it is an effort for the president especially if there is no administrator appointed to do all the work but if there are no General Annual Meetings little can be said about having an annual budget and having available some money to deal with any contingencies that may arise in the least convenient moment.
- If the economy allows it, engage a property manager (administrador/a). If there is a professional who earns his/her fees, these are the property managers or the so-called “administrador” in Spain. These professionals manage the community, keep the accounts and deal with all individual problems, among other responsibilities. (I will explain below the main responsibilities of the property manager in Spain)
- It is much easier and less expensive to carry out any reforms little by little than to face one major unexpected construction problem. Normally when a disaster occurs there is little choice as to when the reparation needs to be carried out and as a rule, the time is now, and now is more often than not on a weekend or on a holiday season when labour charges are highest.
So, do plan any maintenance in advance and save money in the long run.
What are the property manager’s responsibilities?
Returning to the property manager’s responsibilities, these are specified in the regulation of the communities of owners, and all is set out on the Horizontal Property Law 8/999 of April 6th which reformed the 49/1960 law of 21st of July,
According to this law, the Property Manager, deals with the management of the affairs of the community, although sometimes their functions overlap with that of a Secretary with regard to the custody of documents, drafting of acts, etc., and represents the President in terms of realization of works of conservation of the property.
His engagement is for one year unless the statutes state otherwise or unless his engagement is terminated due to lack of confidence by the community of owners, being necessary in this case an extraordinary meeting to be held and such matter agreed upon.
Very often a great professional.
The property manager is a professional with appropriate training for his duties. To access the title, there are currently only two formulas: the possession of certain higher university degrees (law graduates, economics…), or passing the courses of the Official School of Administrators, authorized by the Ministry of Development. This career is taught at eleven universities throughout Spain, with a minimum of 180 credits, and it takes a minimum of three years.
In any case, despite this series of problems I have mentioned above, it is also true to say that in small communities of owners, most problems are resolved through peaceful means, without having to go to court. In the end, after all, small communities are like a large family or aren’t they?
61 responses
Hi,
I am sorry intruding. I have a special case which your thoughts will be very useful. I am an American, unaware of Spanish laws purchased a small Apartment in Benalmadena to visit as provided by law twice a year. It comes with a parking, there is no bylaw and it is very in-ordinary why it does not have any? A president and an administer none has any contract, very strange.
1. others are using my private parking, what could I do to prevent that? can I take one to court and sue for penalty and legal fees?
2. The small community has a door that needs to be kept locked, The president and administer are not using proper locking system. It is unsafe specially in Spain. what could I do?
3. my unit is duplex, with bathroom on first floor. How could I add a second bathroom to the second floor? what are legal barriers?
Thanks
Alex Hasch
1. others are using my private parking, what could I do to prevent that? can I take one to court and sue for penalty and legal fees?
See my reply in your last post.
2. The small community has a door that needs to be kept locked, The president and administer are not using proper locking system. It is unsafe specially in Spain. what could I do?
You should lodge an official complain stating the case and bring the matter up in your next general meeting.
3. my unit is duplex, with bathroom on first floor. How could I add a second bathroom to the second floor? what are legal barriers?
Your legal barriers are the planning regulations that govern your urbanization. You can find that out at your local town hall, (Oficina de urbanismo) You should take with you the Cadastral reference of your property an any plans pf your house if you have them
Juan Pacheco
Hi,
I bought an Apartment in Benalmadena fro my second home to visit twice a year. I would appreciate your thoughts on these questions:
1. how to prevent others parking in my private parking space lawfully? could I sue them for damages, fines, and cost including legal fees?
2. Front door is kept unlock? how can I reinforce locking this when a President and an administrator that none have any contract, no bylaw, so incredibly non western ?
Thanks
Hi Alex,
1. how to prevent others parking in my private parking space lawfully? could I sue them for damages, fines, and cost including legal fees?
If you have the parking lot in your property deeds, the issue is for you to solve. If that is not the case that is, the parking lot belongs to the community but you have the use there on the solution to that problem is for the community to solve. The option of suing someone is always open to you, and although I am not a lawyer, I suppose that you will need to prove that they have caused you a loss of income, produced a problem for you etc. Would the installation of a mechanical barrier attached to the ground with a lock solve the problem?
2. Front door is kept unlock? how can I reinforce locking this when a President and an administrator that none have any contract, no bylaw, so incredibly non western ?
Sorry Alex but I don’t quite understand this question.
Juan Pacheco
Is it necessary to hold an EGM to change Administration if all the owners agree by email to make the change? Current Admin resigned and owners agreed to a change recommended by the President.
Following a recent AGM, it has been decided that consideration be given to calling an EGM to discuss quotes for new maintenance contracts in respect of lifts within the larger blocks in my urbanisation One of the quotes is for replacement of the existing lifts at a cost of €600.000!!. There are over 500 properties in the urbanisation and most of the blocks don’t have lifts. A discussion has now started on the community Facebook page where some owners are suggesting that only owners who live in the blocks with lifts should be responsible for the expense of replacing and future maintenance. The community has been established for 17 years and this issue has never arisen previously. I live in a block with a lift and I would like to know what is the law on this issue. Can you advise please.
Is secret (written) vote as opposed to open (show of hands) vote allowed at the AGM according to the Spanish Horizontal property Law ?
The reason I ask is that I want to present a proposal at AGM for voting and to avoid peer pressure I want written voting.
Hoping for a clarifying answer.
I live on a community of 68 different properties, some villas, some apartments and town houses (in blocks of four), and have been an owner since the community was first formed in 2008. I cannot find any trace of our statuts when our community was formed and our administrators have no record of the statuts ever existing, however we have rules and recently an issue has been brought forward to ask if the opening hours of the pool be extended during the summer holiday period, although our local council has deemed our urbanisation to be residential and not holiday and has declined any licenses to allow holiday makers who are not owners to be able to rent on our communities.
Would you know what the law is in regard to a vote on extending the pool opening hours from its existing times to the new times just for the summer months please?
Or could you point me in the correct direction to obtain the information, as our administrators do not seem to know what the answer is.
I seem to recall after studying the HPA in English that under section 18 para 1 (b) that any changes to rules that arise from the AGM can be challenged in court if there are results that are seriously detrimental to the community and benefit one or several unit owners.
We obviously as a community do not wish to agree to changes to our existing rules that could end up being challenged and taken to court, therefore I am looking for a clear understanding of the situation before reporting back to our community.
I own a 1st floor apartment in a block of 2 apartments.
I have new neighbours that have just moved into the ground floor apartment .
Their apartment has a garden at the front of our block and access their apartment from the front.
I have access from the side of the block inside a gate and small flight of steps.
This side gate also gives me access to my private back garden , can you please advise if my new neighbours are entitled to use my private back garden?
Hi there,
We have a pretty new community where 20-30 apartments are rented out through different property management companies.
There is a idea now to have only one for those apartments.
Can the owners be pressured to just use one selected agency by the administrator or the president of the community?
Thanks
Hi,
We are third floor apartment owners in a small community block. We have had a full reform to our apartment and had air conditioning fitted. The outlet pipes for one of the air con units was fed off our Juliette balcony to drip down into the bush below by the engineer, it turns out that the outlet has been dripping onto the concrete column above our ground floor neighbours window and he is claiming it has leaked through into his bedroom ceiling/wall causing water damage. We have now put the outlet into a large bottle to collect the air con water however he is wanting us to pay for the damage. We are unsure where we stand as surely when it rains he will have the same issue with the leak? I have requested previous community meeting minutes to see if this leak has been complained about before as we have only purchased in the last year and we have only used this aircon unit twice.
Based on the information you’ve provided, here are some of my considerations:
1. Lack of Community Regulations: The absence of specific regulations governing external installations is a factor to consider. However, it doesn’t necessarily absolve you of responsibility, as general principles of good neighbourliness and property law still apply.
2. Engineer’s Qualifications: Was your Air con installer a bona fide installer? It might be worth investigating whether the installation was done under professional standards and best practices if you cannot verify the engineer’s qualifications.
3. Damage Assessment and Evidence: It’s crucial to obtain a professional assessment of your neighbour’s property damage. This assessment can provide evidence of the extent of the damage and its potential cause. Additionally, gather any photos or documentation that support your neighbour’s claim.
4. Communication with Your Neighbour: It’s important to encourage your neighbours to provide any additional documentation or evidence they may have. This includes any maintenance records or previous complaints related to water leaks in their apartment.
Next Steps:
1. Community Manager: Contact your community manager to inquire about any existing regulations or guidelines related to external installations.
2. Engineer’s Information: If possible, try to obtain the contact information of the engineer who installed the air conditioning unit to verify their qualifications.
3. Professional Assessment: Arrange for a professional to assess the damage to your neighbour’s property.
4. Mediation: Consider mediation as a potential solution to resolve the dispute without resorting to legal proceedings.
Remember: While it’s important to defend your rights, it’s also essential to approach the situation with a cooperative and respectful attitude.
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Hi we have local in Spain with its own entrance having owned the unit since 2004.
The community is billing us for the repairs to the roof top swimming pool and the repairs to the facade of the buildings.
When we bought the local on the ground floor we had to put our own facade on when new
We have been paying a set amount of community fees since we bought the local which is just for the community insurance of the building.
It was made clear to us when we bought the local we do not have access to the swimming pool .or the main entrance of the block and only access to our local..
The community’s has divided up the outstanding fees for the repairs to the swimming pool and facade according to everyone’s floor space allocation…but I’m confused to why we are having to pay as we do not use or have any access to the swimming pool and the repairs to the facade to the above apartments.
If you can help or advise me on this it would be great please (do I have to legally pay?)
Hi Prakash,
Sorry for the delayed reply.
1. Legal Framework:
– Since you have a participation coefficient in the Horizontal Division deed, you are legally bound by Article 9 of the Horizontal Property Law
– This means you are generally obligated to contribute to the maintenance of common elements based on your coefficient
2. Regarding the Swimming Pool:
– Even though you don’t have access to it, this doesn’t automatically exempt you from contributing to its maintenance
– However, you might have grounds to request a modification of your participation coefficient or expenses if:
– The initial coefficient was calculated without considering the lack of access to these facilities
– There’s a clear disproportion between your benefits and obligations
3. Regarding the Facade:
– The facade is considered a common element under Spanish law
– The fact that you maintain your own storefront doesn’t exempt you from contributing to the general facade maintenance
– However, your contribution should be proportional and fair
Legal Options Available to You:
1. Short-term:
– You can formally challenge these specific charges at the next community meeting
– Request a review of the distribution of expenses
– Ask for a detailed breakdown of how the costs were allocated
2. Long-term:
– You can request a modification of your participation coefficient through:
a) Community agreement (requires majority vote)
b) Legal action (if community doesn’t agree)
– Seek a judicial review of the expense distribution
Recommended Actions:
1. First step: Request in writing:
– A detailed breakdown of the expenses
– The legal basis for including your property in these specific costs
– Copies of relevant community agreements
2. Second step:
– Consult with a local property lawyer (abogado especializado en propiedad horizontal)
– Have them review your specific deed and community statutes
3. Third step:
– Based on legal advice, either:
a) Negotiate with the community for a more equitable arrangement
b) Challenge the charges legally if you have strong grounds
Legal Answer to “Do I have to legally pay?”:
Yes, technically you are legally obligated to pay under current circumstances, because:
1. You have a participation coefficient
2. There are no explicit exemptions in your deed
3. These are considered common elements under law
However, you can:
1. Pay under protest (to avoid penalties)
2. Simultaneously challenge the charges
3. Seek modification of your future obligations
I hope that is of help Prakash
I have two simple questions I hope can be answered directly.
1. Is it a lawful requirement that any person wishing to be elected President of a community, or a committee member, has to be physically present at the AGM in which they are elected?
2. Can votes be cast via an electronic voting system, in our cas Google vote, at any time? In particular, prior to the AGM, as in our case.
Hi Eric,
Sorry for the delay in answering your questions. Somehow it Sorry for the delay in answering your questions. Somehow it slipped through the system.
Let me address these specific questions about Spanish community governance law:
1. Regarding physical presence at AGM for election:
No, it is not a legal requirement for candidates to be physically present at the AGM to be elected as President or committee member. According to the Spanish Horizontal Property Law (Ley de Propiedad Horizontal), a property owner can be elected even in their absence, provided that:
– They are a legitimate owner in the community
– They have not previously declined their nomination
– They accept the position within 10 days of being notified of their election
However, if they don’t accept the position within this timeframe, another extraordinary meeting must be called to elect a different president.
2. Regarding electronic voting:
The situation with electronic voting is more complex:
– The Law 10/2022 of June 14th modified the Horizontal Property Law to explicitly allow remote attendance and electronic voting
– However, for electronic voting to be valid:
– It must be specifically provided for in the community’s statutes
– The system must guarantee the identity of the voter and the security of communications
– Pre-voting before the AGM is generally not permitted unless explicitly allowed in the statutes
– Votes should be cast during the actual meeting, even if participating remotely
Therefore, using Google Forms for voting prior to the AGM would not be legally valid unless:
1. Your community statutes specifically allow for this method
2. The voting system can verify the identity of voters
3. The community has formally agreed to this voting procedure
I would recommend consulting your community statutes and, if necessary, modifying them to explicitly include provisions for electronic voting if this is something the community wants to implement.
I hope this is of help Eric
Hi Eric,
Let me address these specific questions about Spanish community governance law:
1. Regarding physical presence at AGM for election:
No, it is not a legal requirement for candidates to be physically present at the AGM to be elected as President or committee member. According to the Spanish Horizontal Property Law (Ley de Propiedad Horizontal), a property owner can be elected even in their absence, provided that:
– They are a legitimate owner in the community
– They have not previously declined their nomination
– They accept the position within 10 days of being notified of their election
However, if they don’t accept the position within this timeframe, another extraordinary meeting must be called to elect a different president.
2. Regarding electronic voting:
The situation with electronic voting is more complex:
– The Law 10/2022 of June 14th modified the Horizontal Property Law to explicitly allow remote attendance and electronic voting
– However, for electronic voting to be valid:
– It must be specifically provided for in the community’s statutes
– The system must guarantee the identity of the voter and the security of communications
– Pre-voting before the AGM is generally not permitted unless explicitly allowed in the statutes
– Votes should be cast during the actual meeting, even if participating remotely
Therefore, using Google Forms for voting prior to the AGM would not be legally valid unless:
1. Your community statutes specifically allow for this method
2. The voting system can verify the identity of voters
3. The community has formally agreed to this voting procedure
I would recommend consulting your community statutes and, if necessary, modifying them to explicitly include provisions for electronic voting if this is something the community wants to implement.
Let me address these specific questions about Spanish community governance law:
1. Regarding physical presence at AGM for election:
No, it is not a legal requirement for candidates to be physically present at the AGM to be elected as President or committee member. According to the Spanish Horizontal Property Law (Ley de Propiedad Horizontal), a property owner can be elected even in their absence, provided that:
– They are a legitimate owner in the community
– They have not previously declined their nomination
– They accept the position within 10 days of being notified of their election
However, if they don’t accept the position within this timeframe, another extraordinary meeting must be called to elect a different president.
2. Regarding electronic voting:
The situation with electronic voting is more complex:
– The Law 10/2022 of June 14th modified the Horizontal Property Law to explicitly allow remote attendance and electronic voting
– However, for electronic voting to be valid:
– It must be specifically provided for in the community’s statutes
– The system must guarantee the identity of the voter and the security of communications
– Pre-voting before the AGM is generally not permitted unless explicitly allowed in the statutes
– Votes should be cast during the actual meeting, even if participating remotely
Therefore, using Google Forms for voting prior to the AGM would not be legally valid unless:
1. Your community statutes specifically allow for this method
2. The voting system can verify the identity of voters
3. The community has formally agreed to this voting procedure
I would recommend consulting your community statutes and, if necessary, modifying them to explicitly include provisions for electronic voting if this is something the community wants to implement.
I hope that that was useful to you
Juan
Can someone please advise on the following, from knowledge or experience please.
We live in a Community and own our home. We have 2 security cameras on the front wall of our house, which is on a common hallway, and the cameras cover the front door only, and have no view of any common area.
AEPD Spain, the Data Protection dept of the Government, have confirmed that this is classed as “Private Domestic Activity”, and has protection under the law “articulo 22 de la ley general de proteccion de datos personales”. This activity is exempt from Data Protection Laws, and as such, we do not need permission from the Communidad for the cameras, as the cameras do not film anything other than our front door.
The necessary cards are displayed with our information.
The question is, the Community state that in general, nothing can be placed on the outside walls, of your Private dwelling, and so, I would like to know if the Community and President, can prohibit the cameras from being on our wall, given both that their permission is not required and that we have a right to protect our home. We also have cameras at the back of the property, which there is no problem with. These also only cover our Private garden.
The President states that despite the walls forming part of our home, technically we have no control over the outside of these walls.
Can anyone advise the position regarding ownership and use of walls for the purposes of the above, and point me in the direction of the written law.
many thanks.
Hi, there Gary,
I think that your case involves several key considerations which makes this case rather interesting:
1. Legal Framework:
– The Ley de Propiedad Horizontal (LPH), specifically Article 7.1, establishes that while owners can modify private elements, they cannot compromise the community’s security or alter the building’s configuration or external appearance.
– At the same time, Article 396 of the Civil Code defines common elements, including facades, but recognizes the right to private use of elements directly linked to private units.
2. Your Specific Situation:
– The fact that your cameras are installed in the front wall of your house may provide the other side with a strong argument. However, if you placed the cameras on your entrance jamb (the recessed area of the opening) would be significant, as this could be considered part of your private use space rather than the general facade.
– The AEPD confirmation of “Private Domestic Activity” strengthens your position, as it acknowledges your right to protect your property.
3. Legal Position:
– The President’s claim about exterior walls is partially correct but oversimplified. While the community owns the walls structurally, owners have certain rights over areas directly serving their private units.
– I have found some relevant jurisprudence (STS 2015/4254) has established that modifications that don’t affect the building’s essential structure or external appearance can be permitted, especially when serving a legitimate security purpose.
Recommended Actions:
1. Request a copy of the Community Statutes and internal regulations to verify any specific restrictions.
2. Document your camera installation with:
– The AEPD confirmation
– Photos showing the limited scope of surveillance
– If possible technical specifications proving no common area recording
3. If the community insists, request a formal Junta de Propietarios (owners’ meeting) to discuss the matter, where you can present your case formally.
The strongest legal argument in your favour is that:
– The installation serves a legitimate security purpose
– It’s in a recessed area directly serving your private unit
– It doesn’t affect common areas or other owners’ rights or the structural security of the walls affected.
– It’s protected under data protection law as private domestic activity
I would suggest writing a formal letter to the Community President citing Article 7.1 of the LPH and the AEPD confirmation, requesting either written confirmation that the cameras can remain or a formal meeting to discuss the matter.
I hope that this is of help to you Gary.
Juan Pacheco
Architect
In my community we need to repair the plaster of the facades and then paint all walls. Some owners do not want to pay for the painting, they see it as esthetics under article 17.4 of the Horizontal Property Law. Others see the painting as a preservation. What is here right?
Hi Willem,
I thought I had answered this post before….?
This interesting legal question touches on the interpretation of Article 17.4 of the Spanish Horizontal Property Law (Ley de Propiedad Horizontal – LPH). Let me analyze this situation:
1. First, we need to distinguish between:
– Repairs to the plaster (reparación del enfoscado): This is clearly a maintenance and preservation work
– Painting (pintura): This is where the controversy lies
2. The painting of facades after plaster repair should be considered necessary maintenance work, not merely aesthetic, for these reasons:
– The paint serves as a protective layer for the plaster and underlying wall
– It prevents water filtration and deterioration
– It helps maintain the waterproofing properties of the facade
– Without proper painting, the plaster would deteriorate more quickly
3. Legal precedents:
– Several court decisions have established that painting after repair work is part of the maintenance obligation
– The Spanish Supreme Court has ruled that when painting is part of a preservation work, it cannot be considered purely aesthetic
4. Article 10.1 of the LPH establishes as mandatory:
– Works necessary for proper maintenance
– Works required for proper upkeep of the building
– Works necessary to maintain proper conditions of habitability, security, and accessibility
Therefore, in my legal opinion, the painting in this case should be considered part of the necessary maintenance work, not merely aesthetic, because:
– It’s being done after a repair (not just for appearance)
– It serves a protective function
– It’s part of the complete rehabilitation process
All owners should contribute to both the plaster repair and painting costs according to their participation quota, as established in Article 9.1.e) of the LPH.
I hope this is of help Willem.
Juan Pacheco
Architect
Very clear, thank you
Hello Juan, what if the building (2 properties-a store below and a home above) has no formal community? The entrance to the home is separate. What happens for instance if the foundation needs repairs? Or a supporting wall? Or the plumbing needs repairs throughout the building? What about a roof? Who is responsible for what when it affects both properties?
Thank you for your advice.
Hi again Kim,
This situation is fairly common in Spain, especially in older buildings, and presents certain legal complexities. Let me explain:
In the absence of a formal Horizontal Division, we are dealing with what is called a “de facto community” or “ordinary community” governed by Articles 392 and following the Spanish Civil Code.
I am thinking of Article 395: Every co-owner shall have the right to compel the co-owners to contribute to the costs of maintaining the common property or right. Only the person who renounces his share in the ownership may be exempt from this obligation.
Regarding your specific questions:
1. Structural elements (foundations, load-bearing walls):
– These elements are considered common by nature, regardless of the lack of horizontal division.
– Repair costs must be shared by both owners in proportion to the useful area of each property.
– If there is disagreement about the proportion, the cadastral value of each property can be used as a reference to determine the proportion attributed to each property.
2. Common installations (general plumbing):
– Installations that serve both properties are considered common elements.
– Repair costs are shared according to the same criteria as above.
– Private installations (those that only serve one property) are the exclusive responsibility of the beneficiary owner.
3. Roof/covering:
– Being an element that protects the entire building, it is considered common.
– Repair costs must be shared, although the upper floor owner might have a higher participation quota as they benefit more directly.
Legal recommendations:
1. It is highly advisable to formalize a Horizontal Division to avoid future conflicts:
– Establish participation coefficients
– Define common and private elements
– Regulate the decision-making process
2. In the meantime, it is advisable to:
– Document all agreements about repairs in writing
– Maintain a record of shared expenses
– Consider mediation in case of disagreements
3. In case of serious conflict:
– You can resort to the courts to establish participation quotas and responsibilities
– You can legally request the formalization of the Horizontal Division
I hope that this is of help Kim. Do not doubt in getting in touch with me if you requiere further advise.
Please note that I am architect by profession and not a lawyer so I recommend that you contact a professional on this field.
Juan
Hi Juan,
Further to my previous message, I understand that a unanimous vote of all community owners is required to make a change to the statutes, which you say is required to effect electronic voting. So this will be impossible to make happen if the current president will be oppose this as it will reduce the “power” he gets from absentee proxies at AGMs.
PLease see my previous reply.
Juan
My previous question may not have been received or published. I was asking if the Law 10/2002 of June 14th modifying the LPH has actually been effected already because I read on another site as of May 2024 that the reform is only in proposal stage from the Socialist Parliamentary Group. Can you please confirm?
Hi Martin,
The law 10/2002 of June 14th is on Urgent measures to promote building rehabilitation activity and has nothing to do with LPH.
Juan
Hi there,
I have a question concerning election or nonelection of vice president and other board members please.
Does the vice president and other board members need to be elected like the president of the community or can the elected president make his own choices?
Ho Sven,
Thank you for posting your question on the blog. Many people will benefit from your question and the reply.
The Vice President and other board members must be elected by the community of owners in a properly convened meeting (Junta de Propietarios). The President cannot appoint them unilaterally. Here’s why:
The Vice President position is particularly important as they substitute the President when necessary, so this position must be democratically elected by the community.
All board positions (including Secretary and Administrator if applicable) must be elected by majority vote during the owners’ meeting.
While the President has significant powers in managing the community, they do not have the authority to personally select other board members, as this would go against the democratic principles established in the Horizontal Property Law.
The only exception to this rule is in cases where no one volunteers for these positions during the meeting – in such cases, there are specific procedures to follow, usually involving rotation of responsibilities among owners.
I hope this is of help Sven.
Juan Pacheco
Architect
Good morning
I have a question with regards Voting at an AGM. We have a property on an Urbanisation and at a recent AGM we were informed that our vote would not be counted because of the size of our property did not qualify. Is this legal I thought that every Property that has paid all Community Fees were entitled to a Vote at an Agm
Hi Sandra,
Thank you for this unusual issue.
Based on what you’ve shared, I can give you some general guidance about voting rights in Spanish urbanisations governed by the Horizontal Property Law (Ley de Propiedad Horizontal).
Under Spanish Horizontal Property Law, every property owner who is up to date with their community fees has the right to vote at the Annual General Meeting (AGM). This is a fundamental right established in Article 15 of the LPH.
The denial of your vote based on the “size of your property” is highly unusual and potentially unlawful. The law establishes that each owner has voting rights proportional to their ownership quota (quota de participación) within the community, but they cannot be denied voting rights entirely.
The ownership quota is typically determined by factors such as the size, location, and characteristics of your property, and it is usually established in the community’s founding deed (Escritura de División Horizontal) or statutes. This quota affects the weight of your vote and your contribution to community expenses, but it does not eliminate your right to vote.
Here are the steps I would recommend you Sandra:
1. **Request written clarification**: Ask the community administrator (administrador) or president (presidente) to provide written explanation of why your vote was not counted, citing the specific provision in the statutes or the law they are relying on.
2. Review community documents: Obtain and review the community statutes and the founding deed to check if there are any unusual provisions regarding voting rights. While unusual, some communities might have specific rules, though these cannot contradict the basic rights established by law.
3. Check your ownership quota: Verify your property’s ownership quota in the property deed (escritura). This will help you understand your voting weight.
4. Formal complaint: If no satisfactory explanation is provided, you can file a formal complaint with the community president and administrator, citing Article 15 of the LPH which establishes your right to vote.
5. Legal action: If the issue persists, you may need to consider legal action. Under Spanish law, decisions made at an AGM where owners were improperly excluded from voting can potentially be challenged and annulled within a year of the meeting.
The important legal principle to remember is that while your vote may carry different weight depending on your ownership quota, you cannot be completely denied your right to vote if you are current with your community fees.
Good luck Sandra
Hello. I have a question regarding the Horizontal Property law articles 10 and 11 and the responsibility, or obligation, of the Community of owners to take the necessary measures required to make the common areas accessible to a disabled person, particularly at that person’s request.
If a disabled owner requests the installation of a pool hoist to enable access into the communal swimming pool, does this require a simple majority decision by the community at a general meeting, or would this request be a case in which approval of the community is not required?
Can a community deny the request, or is it compulsory to provide universal access to the swimming pool at the request of the disabled owner?
Similarly, if a disabled owner requests improved wheelchair access into the communal garden [by widening the gateway to give a clear width of 0.8m, widening the existing ramp to give a minimum width of 1.2m, providing a 1.5m horizontal landing area at the beginning and at the end of the ramp free of obstacles and in particular not affected by the movement of the gate, and lengthening the ramp to provide a gentle gradient with a maximum inclination of 10%], does this request need to be approved by the community of owners with a simple majority or would the works be considered compulsory without any need for a vote at all?
Thanks.
Hi Hazel,
According to the Horizontal Property Law (LPH), specifically after the modifications introduced by Law 8/2013 and the subsequent Consolidated Text of the Land and Urban Rehabilitation Law, accessibility works have special treatment in communities of owners.
Regarding the installation of a pool hoist:
The LPH in its article 10.1.b establishes that works and actions necessary to guarantee reasonable adjustments in matters of universal accessibility are mandatory, without requiring prior agreement from the Owners’ Association. This includes mechanical devices that favour orientation or communication with the exterior for people with disabilities.
However, there is an important nuance: it is considered a “reasonable adjustment” when the cost does not exceed twelve ordinary monthly payments of common expenses, after deducting public subsidies or aid. If the cost exceeds this limit, an agreement by simple majority would be required at the Owners’ Association meeting.
Therefore:
– If the cost of the pool hoist falls within the mentioned limit, the community would be obliged to carry out the installation without the need for a vote.
– If it exceeds said limit, approval by simple majority would be required.
The community cannot deny the request if it is a reasonable adjustment within the established economic limit. If it exceeds said limit, approval would depend on the vote.
Regarding improvements to access to the communal garden:
The same criterion applies. The works described (widening of the gate, ramp and landing areas) are clearly accessibility measures contemplated in article 10 of the LPH.
– If the total cost does not exceed twelve monthly payments of common expenses, they are mandatory works without the need for a vote.
– If it exceeds this limit, it would require approval by simple majority.
Additional recommendations:
1. Obtain an official Spanish disability certificate, as this would significantly strengthen the owner’s legal position.
2. Request detailed budgets for both interventions to determine if they are within the economic limit that would make them mandatory.
3. Formally submit the request in writing to the community, detailing the specific needs and basing them on current regulations.
4. Explore possible public subsidies that would reduce the net cost to the community.
If the community refused to carry out the works when they are legally mandatory, you could initiate legal proceedings which, according to recent case law, are usually resolved favourably for people with disabilities in these cases.
Having said that I would try to obtain some sort of a compromise with the community.
I hope that is of help to you Hazel.
Juan
Thank you so much for your help, Juan. It is greatly appreciated.
Hi Juan, Thanks again for your very helpful reply. I do not seem to be able to print a copy of it from your website. Would you be able to send your reply (including my question) as an email, please? Thanks. Kind regards, Hazel.
Thank you, Hazel!!
Just let me know if you require further help.
Juan
See you email Hazel.
Juan
I own a property with a communal parking area. I do not own a space but each apartment has an assigned space. You are not legally bound to park in that space. The president for the last 10 years is pushing for owners to vote for “legal formalisation” of the community car park to make everyone park in their assigned space. She is stating that at an AGM this was agreed but cannot provide any minutes to verify this. I’ve been an owner here for 15 years and park on a first come first served basis. She has painted. Large numbering on the spaces and has ignored a report from the parking committee here. Some people stick to their parking space if it is outside their block and others don’t. There is plenty of parking for everyone and these rules are causing problems and arguments. Any advice welcome
Hi Joanna,
Thank you for providing that information. Now I have a clearer picture of your situation.
Based on what you’ve shared:
1. Your property operates under the Spanish Ley Horizontal, which governs communities of property owners and shared spaces.
2. Your parking situation is “proindiviso,” which means it’s undivided shared ownership – no one has exclusive rights to specific spaces.
3. The president is attempting to change the parking arrangement without following proper procedures – apparently there has been no official vote, and she cannot provide minutes of the AGM where this was supposedly agreed upon.
4. She has already taken steps to implement her preferred system by painting numbers on spaces, despite lacking formal authorization.
Your position appears legally sound. Under Spanish law:
– Changes to community rules or formalization of previously informal arrangements typically require proper community approval through an official vote.
– The president doesn’t have unilateral authority to change the usage of common elements without following these procedures.
– If the parking is truly “proindiviso” as stated in your deed, then the current first-come, first-served system is consistent with that legal designation.
Your options might include:
1. Request a formal community meeting where this issue can be properly discussed and voted on according to the procedures outlined in the Ley Horizontal.
2. Ask to see the community statutes (estatutos) to confirm what procedures must be followed for such changes.
3. Consider consulting with a Spanish property lawyer (abogado especializado en propiedad horizontal) who can advise on your specific rights.
4. If the president continues to push unauthorized changes, you may need to file a complaint with the community board or even take legal action if necessary.
Remember that in Spain, changes to common elements typically require varying levels of owner approval depending on the nature of the change – some changes require unanimous consent, while others may need a majority vote.
In conclusion.
For the president to be able to change the usage of the parking spaces she will need to have an official vote.
For changes that alter the “proindiviso” (undivided co-ownership) status of common elements like parking areas to assign exclusive use rights to specific owners:
Generally, this requires a supermajority of 3/5 (60%) of owners who also represent 3/5 (60%) of the total ownership quotas.
However, there are some important considerations:
If the change substantially modifies the title deed or statutes of the community, it may require unanimous agreement (100% of owners).
If the change would affect the private property rights of specific owners or diminish their rights to use common elements, those directly affected owners must consent to the change.
The community statutes (estatutos) might specify different voting requirements for your particular community, so it’s worth checking your specific community rules.
The president cannot implement such a change without a properly called meeting, formal vote, and documentation of the results in the meeting minutes.
Given that this would change how the parking spaces have been used for the past 15 years and would alter the “proindiviso” nature of the parking area, this is a significant change that would require, at minimum, the 3/5 supermajority vote, properly documented and recorded.
I hope this is of help Joanna.
Juan Pacheco
Architect
Dear Juan,
Thank you so much for your extremely information response.
So just to clarify, if owners vote for exclusive use of a particular space in the communal parking area, as it is not in our deeds, so this would need to be changed and reflected in both by laws and deeds via notary and land registration. If this was the case would this need to be 100 percent without one dissenting vote? I have requested the community estatutos from the administrator but am yet to receive rice a response.
Hi again Joanna,
It is my pleasure to try to help whenever I can.
You’re touching on a critical point about changing fundamental property rights. Let me clarify:
If the proposed change would involve:
Modifying the actual property deeds to assign exclusive parking rights
Changing the fundamental nature of the “proindiviso” common element to become part of individual private property
Requiring registration with the Property Registry (Registro de la Propiedad)
Then yes, this would typically require unanimous consent (100% agreement without any dissenting votes). This is because it constitutes a modification of the title deed (escritura de división horizontal) and affects fundamental property rights.
This differs from simply establishing usage rules for the existing communal spaces, which can generally be done with a 3/5 majority.
I hope that I have answered your question, Joanna.
Juan
Hi Juan,
My question is regarding the maintenance of external, street facing walls on private terraces of an apartment building….
My community of 39 apartments has a clearly defined communal space in the centre of the building (not street facing) which is maintained by the community. This includes the maintenance and painting of all the fachadas facing on to this communal space. No problems.
However each apartment also has a private terrace facing outwards towards the street, and each terrace is only accessible through the individual apartment concerned. Since occupation all 39 apartment owners have happily maintained their private terrace believing it to be their responsibility. This includes fixing and painting the external, street facing walls in the correct colour, maintaining external terrace woodwork (terrace railings and pergolas etc) in the correct colour, even replacing broken external metal staircases providing access to private roof terraces at great cost to the owner etc.
But now our Administrator is saying that the maintenance of ALL aspects (walls, railings, pergolas, spiral staircases) of these private terraces is also the responsibility of the community !!?? Of the 39 apartments 38 are horrified at this news as communal costs will need to increase considerably. These owners all want to carry on as before, to maintain their own private spaces and thus to keep communal costs down. The one other apartment is happy at this new development….
I have read the relevant articles of the Civil Code and Horizontal Law and believe them to be unclear. It is possible to read “fachadas” in two ways. Either as those walls facing into communal areas, or as ALL exterior walls in a building, even those accessed solely through private apartments.
Our Administrator says the law means ALL external walls but I am not sure ! Can you clarify this please ?
Fortunately our Administrator says we can adopt some “internal rules” to go back to how things were before and that these rules only need a majority vote at a community meeting. Does this sound correct to you ? Currently we do not have any statutes in place, beyond those of the Civil Code and the Horizontal Law.
I would be very grateful for any information you are able to provide on our situation. Our community is made up of Spanish and non-Spanish owners and all (except one non-Spanish owner) think the Administrator’s opinion is crazy and will lead to a community that is simply too much work for the President and too high community fees for the rest of us.
Thanks for your attention in this matter,
Alan
Hi there Alan,
In Spain, the matter of facade maintenance under the LPH has indeed caused confusion for many communities. The general interpretation tends to be that external facades (including those on private terraces visible from the street) are considered common elements because they affect the overall aesthetic of the building and its structural integrity.
Article 10.1 of the LPH establishes that the community is responsible for maintaining the structure, facades, roofs, and other common elements of the building. However, there is room for interpretation, especially when it comes to elements like pergolas, railings, and stairs that are exclusively used by individual owners.
What makes your situation interesting is that:
1. You’ve had an established practice for years where owners maintained their own terraces and exterior walls
2. Almost all owners (38 out of 39) prefer to continue with this arrangement
3. You don’t have specific statutes that clarify these responsibilities
Your Administrator is technically correct that, by default interpretation of the LPH, the community could be responsible for the facades. However, the LPH also allows communities significant flexibility in managing their affairs.
The Administrator’s suggestion about adopting internal rules (normas de régimen interno) through a majority vote is a valid approach. According to Article 17 of the LPH, such rules can be approved by a simple majority of owners present at a properly convened meeting.
These internal rules could specify that:
• Individual owners will be responsible for maintaining the external walls, railings, and other elements of their private terraces
• This maintenance must comply with community standards for appearance (colors, materials, etc.)
• The community reserves the right to intervene if maintenance is neglected
This compromise would preserve your community’s functioning system while remaining within the framework of Spanish property law.
I would recommend documenting this carefully in your meeting minutes and ensuring that the rules are properly recorded and communicated to all owners, including future buyers. This helps establish a clear precedent and expectation for all current and future community members.
I hope this is of help.
Good luck, Alan!!
Thank you very much for your detailed reply Juan. I didn’t expect anything so quickly and am very grateful.
Kind regards,
Alan
Hi Alan,
Thank you!! for your kind words.
I am here to help.
Juan
For the first time our 2025 AGM in Tenerife allowed remote attendance by Zoom.
The sound was quality was very poor, no questions from the floor could be heard and those attending via Zoom were allowed to vote on paper before the meeting took place.
There is no mention of Zoom attendance in our statutes.
Also the president proposed to change our statutes to allow a series of financial penalties e.g,a fine of E50, for minor misdemeanours such as hanging items over balconies and leaving shoes outside the front door in a communal space.
This was agreed at the meeting but not by a unanimous vote.
Can the statutes be changed in these circumstances.
Lastly the previous president refused to carry out repairs to my property and my insurer proceeded to take the matter to court on my behalf. I signed POA 2 years ago.
and the case has not yet appeared in court.
The new president now wants to repair my property to which I have absolutely no objection.
I have been told I can not stop the court case as my insurer is acting on my behalf.
I have written to the insurance lawyer and the administrator more than once , providing each with the others details and suggesting that they discuss the matter in order to avoid additional expense to the community in court costs. Neither has replied to my request.
Can I proceed to allow the repair outside of any court ruling and if I do so without the insurers consent, then would I be liable for any costs incurred by them so far.
Hi Nigel,
While some details are still unclear, I can offer guidance based on the Horizontal Property Law (Ley de Propiedad Horizontal) in Spain.
Regarding the AGM with Remote Attendance
The legality of your AGM with Zoom attendance is questionable for several reasons:
1.Statutory Requirements: If your community statutes do not explicitly allow for remote attendance, this could be problematic. The Spanish Horizontal Property Law was modified during the COVID-19 pandemic to allow for remote attendance, but generally, this should now be reflected in your community’s statutes.
2.Technical Issues: The poor sound quality and inability to hear floor questions raise serious concerns about whether remote participants could meaningfully participate, which could invalidate decisions made during the meeting.
3.Pre-voting: Allowing Zoom attendees to vote on paper before the meeting took place is particularly problematic. Voting should occur after discussion at the meeting, and pre-voting prevents participants from being fully informed before casting their votes.
You could potentially challenge the validity of this meeting on these grounds, especially if significant decisions were made.
Regarding Statute Changes for Financial Penalties
The modification of statutes to include financial penalties requires:
1.Majority Requirements: Under Spanish Horizontal Property Law, changes to statutes typically require a qualified majority (3/5 of owners representing 3/5 of ownership quotas). However, for establishing or modifying community rules that affect owners’ use of properties or common elements, unanimous agreement is often required.
2.Proportionality: The penalties must be proportionate and reasonable. €50 for minor infractions such as hanging items over balconies or leaving shoes in communal areas might be considered disproportionate by some courts.
Without unanimity for these types of restrictions on property use, these statutory changes could be legally challenged. The courts often require unanimous agreement for rules that restrict the use of private property or impose financial penalties.
Regarding Your Insurance Claim and Repairs
This situation is complex, but I can advise:
1.Legal Representation: Once you signed a Power of Attorney to your insurer, they have legal authority to pursue the claim. It’s difficult to unilaterally withdraw this authority.
2.Allowing Repairs: You can likely allow the community to repair your property outside the court process. However, this should be properly documented, including photographs before and after, and formal agreements about the nature and scope of repairs.
3.Potential Liability: If you allow repairs without your insurer’s consent, you might be liable for:
– Legal costs incurred by your insurer so far
– Any expert reports or assessments already commissioned
– Their administrative costs
I would recommend:
1. Send formal communications (burofax or certified letter with recipts of acceptance) to both your insurer and the administrator requesting a response regarding an out-of-court settlement.
2. Specify a reasonable deadline for response (e.g., 15 working days).
3. If they don’t respond, document the repairs thoroughly and inform your insurer in writing before allowing the repairs to proceed, explaining that this is to mitigate damages.
4. Consider consulting a local solicitor for specific advice tailored to your case, as the details matter considerably.
Without more specific information about your case, these are the general guidelines under Spanish property law. Each case has unique aspects that can affect the legal outcome.
I hope this is of help as a guide line. Please understand that I a m not a lawyer, so do get legal advise.
Juan Pacheco
Architect
I have just purchased a townhouse and on moving in, found that the neighbour´s sewer encroaches in my basement store room. The complex is about 20 years old. As we do not live there full time, (and the sound is annoying when they flush) can we ask them to relocate the sewer pipe to inside their own property in case of leakage into my basement?
Hi Nicholas,
If you have documentation from your property purchase that shows the boundaries and mentions this encroachment, it is vital and strengthens your position considerably. In Spanish property law, when an encroachment like a sewage pipe is documented, it provides clear evidence of the property boundaries and the nature of the encroachment.
Although you haven’t mentioned it, I believe you are not part of a community of owners (comunidad de propietarios); so I haven’t mentioned how to navigate additional community regulations, and simplify matters. This means you deal directly with your neighbour as an individual property owner.
Next Steps Based on Your Situation
1. Review Your Documentation Carefully:
Before taking any action, thoroughly examine your property documentation to understand exactly what it says about this encroachment. The documentation might specify terms or conditions related to the encroachment, which could affect your rights to request its removal.
2. Initial Conversation with Your Neighbour:
It’s advisable to start with a friendly conversation with your neighbour about the issue. Explain your concerns about the noise and potential leakage, and discuss possible solutions. Since you haven’t spoken with them yet, this should be your first step.
3. Present your documentation:
During this conversation, you can mention that you have documentation showing the encroachment. This might make your neighbour more receptive to addressing the issue, as it establishes your awareness of the situation from the time of purchase.
4. Propose Solutions:
You could suggest a few potential solutions, such as relocating the pipe to their property, soundproofing the existing pipe to reduce noise, or implementing measures to prevent potential leakage.
5. Consult with a Spanish Property Lawyer:
If your neighbour is unwilling to address the issue, consulting with a lawyer who specialises in Spanish property law would be your next step. Having documentation that mentions the encroachment will be extremely valuable for any legal proceedings.
Legal Basis for Your Request
Under Spanish property law, sewage connections typically require explicit agreement between neighbours, unlike water access. The fact that you have documentation acknowledging the encroachment indicates that this was recognised during your property purchase, which likely means you have grounds to request changes, especially given the practical issues (noise and potential leakage) you’re experiencing.
According to legal experts, when there is no easement or encroachment on your title report for drain lines, any agreement regarding them needs to be in writing. Your documentation may clarify whether such an agreement exists and what its terms are.
Given that you have documentation and are experiencing actual disturbances (noise when they flush), you appear to have a strong case for requesting that the neighbour relocate the sewer pipe to their property. However, the specific language in your documentation will be crucial in determining your exact rights in this situation.
Of course, all this applies because I am assuming that your property does not form part of a Community of Owners. If it were, the community of owners would be responsible for the sewerage system and you should address the problem with them.
I hope this is of help, Nicholas.
Juan
Hello … we have a ground floor apartment in Mallorca with a beautiful garden, including a number of established trees (20 years +), including a beautiful palm tree. A neighbour in the block behind us wants our palm tree to be removed as it is having an effect on her view; the rest of our trees we can prune from above and the palm tree we can only prune from beneath. Some community palm trees are also affecting her view, but the President has stated in the AGM that community palm trees will not be cut down. It was suggested in the last AGM that a restriction be placed on ground floor apartments having “tall” trees within their private gardens. Most ground floor apartments do have trees within their established private gardens, many of which are already “tall”, including the neighbour beneath her in the ground floor of her block. But ground floor apartments would be in the minority if this went for a vote. Can a neighbour force this upon us? Oit palm tree provides us with shade and privacy and branches will soon grow above the height of her flat. We note that under Spanish Law, the right to a view is not protected. The Community Statutes state only that we should maintain our garden, which we do, retaining photos from every time we have pruned our trees etc. Do we have anything to be concerned about? Thank you.
Hi Angela,
Thank you for contacting us.
LEGAL ANALYSIS – YOUR POSITION IS VERY STRONG
1. Nature of Your Rights: If your garden with “uso privativo exclusivo” grants you exclusive use rights over this common element. Crucially, we presume that there are no restrictions in your deeds or community statutes regarding trees or landscaping beyond general maintenance.
2. Established Use Rights:
• Your palm tree is an established use (20+ years, predating the complaining neighbour)
• You’ve consistently maintained your garden and have photographic evidence, we think, and if not, do so from now on.
• No previous complaints from the community or authorities
3. Statutory Protection – The Key Point: The requirement for unanimity to modify community statutes is your strongest protection. Any restriction on tree heights would require a statute amendment, meaning you can effectively veto any such proposal.
LEGAL OBSTACLES FOR THE NEIGHBOUR
Cannot Force Removal Because:
• No right to views under Spanish law
• Your palm tree represents the lawful use of your exclusive use area
• Established prior use (doctrine of “actos propios”)
• Community president’s position on community palm trees creates precedent
Cannot Impose New Restrictions Because:
• Unanimity requirement means you can block statute changes
• Ground-floor owners would be disproportionately affected
• Retroactive application to established trees would be legally problematic
RECOMMENDATIONS
1. Maintain Current Position:
• Continue proper garden maintenance and documentation
• Keep photographic records of pruning activities
2. If Formal Motion Arises:
• Vote against any statute amendments regarding tree restrictions
• Your single vote blocks any changes requiring unanimity
3. Diplomatic Approach:
• Consider reasonable pruning that doesn’t compromise your tree’s health or your privacy/shade benefits
You have virtually nothing to be concerned about legally. Your rights are well-protected, and the neighbour has no viable legal route to force tree removal or impose new restrictions.
Ihope that i have interpreted corrctly your problem.
Best of luck
Juan Pacheco
Hello, I inherited a top floor apartment/penthouse with a communally owned roof terrace which I have private use of. The roof was repaired by my father. Lately there were more leaks which I fixed, as it seemed urgent with water coming through to the kitchen. The community says my father and my unauthorised work means they are not responsible for any repairs. I think the problems eminate from the perimeter walls which we have not altered. The community Finques is unclear on the detail, as are the AGM minutes, and it is extremely difficult to move forward. I think it would be best have the roof back in the Community’s responsibility. What do you advise? I think a mutually agreed survey would be a start.
Hi Amanda,
Thank you for your question.
LEGAL ANALYSIS
Your legal position is strong for the following reasons:
1. Nature of the element: The roof terrace with “uso privativo” (private use) remains a common element under Article 396 of the Civil Code and the Horizontal Property Law. You have exclusive use rights, but ownership and maintenance responsibility belong to the community.
2. Location of the leaks: The junction between the roof and party wall is clearly a common structural element. These areas never lose their communal character regardless of private use arrangements.
3. Maintenance repairs: If your father’s and your interventions were conservation/maintenance (not structural modifications), they do not alter the community’s responsibility for the common element.
ISSUES TO RESOLVE
• Lack of documentation for repairs carried out. Try to compile all the expenses you have on the repairs carried out so far.
• Community’s position we presume is verbal (not formalised)
• Absence of a technical survey to determine responsibilities
RECOMMENDED STRATEGY
1. Joint survey:
• Formally propose at the AGM that a joint technical survey be commissioned
• To determine: source of leaks, structural condition, and responsibilities
• Cost shared between the community and yourself (demonstrates good faith)
2. Formalisation in writing:
• Request in writing from the community clarification of their legal position
• Cite relevant articles of the Horizontal Property Law
• This obliges them to provide legal grounds for their refusal
3. Documentation:
• Gather evidence of the leaks (photos, videos)
• Request a copy of the original horizontal division deed
I hope this is of help.
Juan Pacheco
Architect
Good afternoon I was wondering if you could help me I rent a pub and it’s on the second floor And the landlord is telling me I have to repair the lift which is not working. Is this done to me or is this the owner? I have gone and paid for it. They come to sign it off and then in the cockpit it keeps filling up with water so they cannot sign it off and there is a leak in the lake which they’re not. I believe is running through to the underground and fill in my lift up, where do I stand The owner? There’s not reply. I’ve asked for a meeting and I don’t get nothing. Who is this down to and what can I do to resolve it?
Hi Tom,
Thank you for posting your question here.
This is an interesting question because it combines your rental agreement and the responsabilities of both your landlord and yoou ownunder the “Spanish Horizontal Law”
IMMEDIATE PRIORITY: STOP PAYING FOR REPAIRS
Do not pay for any more elevator repairs until this is legally clarified. You’ve already paid once – don’t compound the problem.
How to Find Out the Key Information You Need:
1. Check Your Lease Contract
Find your rental agreement and look for sections on:
“Reparaciones” (Repairs)
“Mantenimiento” (Maintenance)
“Ascensor” or (Lift)
“Responsabilidades” (Responsibilities)
If you don’t have a copy, you have the legal right to request one from your landlord
2. Determine Building Ownership Structure
Visit the Land Registry (Registro de la Propiedad):
Take your building’s address
Request information about the property structure
Cost: Usually under €10
This will tell you: Single ownership vs. horizontal property (multiple owners)
Or check the building entrance:
Look for signs indicating “Comunidad de Propietarios”
Look for administrator contact information posted in common areas
3. Find Out About Building Administration
Ask neighbors or other businesses in the building:
VERY IMPOTANT
Is there a building administrator?
Who handles common area maintenance?
Are there community meetings?
Your Legal Rights (Regardless of Building Structure):
Under Spanish Commercial Lease Law:
Article 21.1 of the LAU states that “the Landlord shall be responsible for carrying out, without the right to raise the rental price, all necessary repairs to maintain the property fit for use for the agreed purpose” Landlord and Tenants’ Rights in Spain.
Landlord cannot abandon responsibility for major repairs
You cannot be forced to pay for structural/major building systems
Water leaks affecting the elevator are typically not tenant responsibility
You have the right to refuse unreasonable repair demands
Immediate Action Plan That I would recommend:
Step 1: Document Everything (Do This Today)
Photograph the elevator problem and water damage
Keep receipts for money you’ve already paid
Write down dates of all conversations with your landlord
Save any messages/emails from your landlord about repairs
Step 2: Send Formal Written Notice to Landlord
Send a certified letter (carta certificada) stating:
“I dispute my responsibility for elevator repairs. Under Spanish LAU commercial lease law, major building systems are the landlord’s responsibility. I request immediate clarification of: 1) Why you believe I’m responsible, 2) Legal basis for this claim, 3) Building ownership structure. Until resolved, I will not pay for further repairs.”
Step 3: Contact Local Resources
Municipal consumer protection office (Oficina Municipal de Información al Consumidor)
Local bar association for legal referrals
Building neighbors/businesses for information about administration
Step 4: Prepare for Legal Action
If landlord continues refusing responsibility:
Collect the information I outlined above
Consult a Spanish property lawyer
Consider filing complaint with local authorities
Red Flags to Watch For:
Do NOT let your landlord:
Pressure you into paying more repairs
Threaten eviction over this issue
Claim “it’s in the contract” without showing you
Ignore your written requests for clarification
Bottom Line:
You likely have strong legal grounds to refuse payment and recover costs you’ve already paid. The elevator and water leak issues sound like major building systems that are typically landlord or community responsibility under Spanish law.
Next steps: Get the building ownership information from the Land Registry and review your lease contract. Once you have these, the legal path forward will become much clearer.
Please understand that although I have many years of experience with the “Spanish Horizontal Law” I am an architect NOT a solicitor. So I sreongly recommend to get in touch with a local solicitot to obtain better advise.
Good luck
Juan
We live on a urbanisation with 60 other homes. Some are holiday homes others are lived in permanently like us. Two AGMs ago a proposal was rejected to allow a resident to use her home for commercial use and set up a real estate agency. She has now got herself voted in as president and thinks that she can now do what she wants and set up this agency. My question has two parts, 1) can she set up this agency even though it has been previously rejected by the community? 2) is it legal to set up any commercial business on a residential urbanisation?
Thank you
Hi Selma,
Part 1: Can she set up the agency despite the previous community rejection?
No, she cannot. Here’s why:
Presidential Powers Are Limited. The presidents cannot make decisions on their own: their job is to lead the meeting and ensure that the laws and statutes of the community are complied with. Decisions must be taken democratically, respecting the interests and needs of all neighbours. As you confirmed, major changes still require community approval.
Previous Rejection Is Binding Under Spanish Horizontal Property Law; any resolutions shall be adopted with the vote of a majority of the community. Since the proposal was already rejected by the community two AGMs ago, that decision remains in effect until a new vote is held and passes.
How She Could Potentially Proceed: The only legal ways she could set up the agency would be:
1. New Community Vote: She would need to call a new AGM and get the proposal approved by the required majority
2. Change Use Restrictions: These kinds of goal-post moving changes require a unanimous vote at an AGM. This is a legal requirement under the Spanish property law.
What You Can Do If She Acts Unilaterally. If she attempts to set up the business without community approval, any member who feels that the decision voted by the majority of community members is illegal, contrary to the community’s statutes, or seriously affects their own interests may ask the local court to annul the decision.
Part 2: Is it legal to set up a commercial business in residential areas?
This involves two separate legal frameworks:
Community Level (Horizontal Property Law) They may approve a limitation to the change of use; owners are not entitled to use houses for commercial purposes, and commercial premises may not be converted into houses. Many communities have specific restrictions on commercial activities, and some bylaws only contain a general provision that prohibits the use of properties for any commercial, economic, professional, or business activity.
Municipal Zoning Level General municipal urban development plans (PGOU) contain the uses permitted for a plot, sector, and zones. She would also need to comply with local zoning laws in your municipality in Alicante, which may restrict or prohibit commercial activities in residential zones.
Your Options
1. Review Community Statutes: Check if your community has specific provisions prohibiting commercial use
2. Document Everything: Keep records of the previous rejection and any attempt she makes to proceed without approval
3. Contact Local Authorities: Check with your local municipality about zoning restrictions for real estate agencies in residential areas
4. Legal Action: If she proceeds without proper approval, you have grounds to challenge this through the courts
Bottom Line
She cannot legally set up the real estate agency simply because she’s now president. The previous community rejection stands, and she would need either a new successful vote or unanimous consent to change the use restrictions. Additionally, she must also comply with local zoning laws, which may independently prohibit commercial activities in your residential area.
I’d recommend consulting with a local property lawyer in your locality if she attempts to proceed without proper authorisation, as you would have strong legal grounds to stop her.
Good luck Selma
Juan Pacheco
Architect
We have no statutes.
Our internal rules and regulations state no relative of a committee member may be employed in the community.
Any proposal to change the rules must be properly itemised on an agenda
Under any other business at the recent AGM we were asked to vote regarding the employment of the presidents partner as paid receptionist.
Objections were made at the time on the basis of conflict of interest.
The administrator stated there was no conflict of interest.
The vote went ahead.
The administrator was later made aware of the rule breaches but says they intend to do nothing about this
Is their a clear breach of the LPH
Are the acting properly
Does this represent a direct financial benefit to the president.
Hi Nigel,
These are my thoughts on the problems you have presented to me.
1. Is there a clear breach of the LPH?
Yes, there are in fact two distinct breaches, not one.
Breach 1 Article 16.2 LPH (agenda requirement)
Voting under “any other business” (ruegos y preguntas) has no legal validity it cannot be used to pass binding agreements on matters that arose during the meeting. This is not a technicality; it is settled doctrine from the Supreme Court. The Tribunal Supremo ruled in June 2010 that a valid convocatoria requires that the agenda specify the matters to be discussed, so they can reach the knowledge of all co-owners. Any agreement adopted outside the agenda, including under ruegos y preguntas, is not admissible as a general rule, because it violates the good faith of owners, particularly those who were absent.
Even if owners present at the meeting press the president or administrator to include a topic under ruegos y preguntas, doing so is absolutely unviable and the agreement reached there is subject to nullity.
Employing a paid receptionist is a significant financial commitment of community funds. This was not a minor or procedural matter that could be brushed through informally.
Breach 2 — Violation of the Internal Rules (Reglamento de Régimen Interior)
Under Article 6 of the LPH, a community may establish internal rules (normas de régimen interior) that are binding on all owners. Your community has such a rule prohibiting the employment of relatives of committee members. The vote directly contravened this rule. Under Article 18.1(a) LPH, agreements are challengeable when they are contrary to the law or the statutes of the community. A violation of the reglamento de régimen interior falls squarely within this ground.
2. Is the administrator acting properly?
No, on two counts.
First, the administrator facilitated an illegal vote by allowing it to proceed under ruegos y preguntas in the first place. A competent administrator should have refused to put the matter to a vote, knowing it was not on the agenda and knowing it breached the internal rules.
Second, when made aware of the rule breaches after the fact, the administrator has obligations under Article 20 LPH, which requires the administrator to ensure legal compliance in the community’s operation. Stating that they “intend to do nothing” about a known rule breach is a failure of that professional duty. This may also expose the administrator to a complaint with their professional body (Colegio de Administradores de Fincas).
3. Does this represent a direct financial benefit to the president?
This is where the conflict of interest argument is strongest. A paid salary going to the president’s partner creates a direct household economic benefit for the president. They have a clear personal interest in the outcome of that vote, yet they presumably presided over the meeting and allowed the vote to proceed — possibly without declaring that interest or recusing themselves.
While the LPH does not contain a specific statutory abstention requirement equivalent to company law directors’ duties, the agreement is challengeable under Article 18.1(b) LPH on the ground that it is gravely damaging to the interests of the community in benefit of one or several owners. The president using their position to facilitate the employment of their own partner is precisely the kind of situation this provision targets.
What should you do and urgently?
The clock is running. The action to challenge an agreement expires at three months from adoption, unless the agreement is contrary to the law or statutes, in which case the period is one year. Given that this agreement breaches both the LPH and the internal rules, they likely have up to a year — but there is no good reason to wait.
Those who voted against and objected on the record are already in the strongest position. Those entitled to challenge are owners who saved their vote at the meeting (salvaron su voto), those absent for any reason, and those improperly deprived of their vote.
The practical steps are: (1) obtain a copy of the acta to confirm how the vote was recorded and whether the objections were minuted; (2) send a formal burofax to the administrator and president, putting the rule breaches on record in writing; (3) consult a property lawyer promptly about filing a challenge under Article 18 LPH before the Juzgado de Primera Instancia. They should also ensure they are up to date with all community fees, as a claimant must be current with all community debts, or have made judicial consignment of those amounts, in order to challenge an agreement.