ACT 49/1960 OF JULY, ABOUT
PROPERTY IN CONDOMINIUM, REFORMED BY ACT 8/1999, OF APRIL 6th
STATED PURPOSE
The long period of validity
of Act 49/1960, of 21st July, about Property in Condominium, has
demonstrated its great utility many different scopes: in the regulation
of relationships among the proprietors subjected to their regime in
building development and town planning. Act 2/1998, of 23rd February, as
well as Act 3/1990, of 21st June, meant a great advance in the
approaching to social reality. However, when the time has gone by,
society new aspirations have arisen as regards of Property in
Condominium regulation.
The rule of the unanimity is
considered nowadays rigorous excess, as it blocks the carrying out of
certain performances which are convenient for the community of
proprietors and even, for environmental or another nature reasons, for
the rest of the guild. Making the regime of majorities more flexible for
the establishment of certain services (Porter’s houses, elevators,
removal of architectural barriers, which hinder the mobility of disabled
people, telecommunication services, use of solar energy, etc.) has been
considered convenient.
Another of the big demands
of the society is to achieve communities of proprietors rightfully be
paid what the integral proprietors owe. What comes to be called the
fight against bad payers, is aimed to be struggled by this reformation
through a plurality of measures directed to such a goal: creation of a
reservation fund, publicity in the public instrument for transferring
figures owed by proprietors, real affection of the transferred property
to the payment of general expenses corresponding to the annual payment
in which the purchase takes place and to the very previous year, joint
responsibility from the transferor who doesn't let know the ownership
change, executive character attribution to formal agreements made at the
Meeting of Proprietors, establishment of an agile and effective
procedure of judicial execution for the collection of debts with the
community, etc..
The present Act also carries out an
up-to-dated regulation for meetings minutes creation, community board
functions, in particular those of the administrator. (Any proprietor or
natural person with enough professional qualification could be
administrator), regime of call, vote right performance, President's
position abandonment and other numerous matters which have been pointed
out as insufficiently regulated by daily reality.
Therefore, the Property in
Condominium Act acquires flexibility and dynamism, as well as
effectiveness, and it complies with the new social requirements, and it
will surely go on being one of the more transcendental ones for the
coming decades in our country.
CHAPTER I
General clauses
1st Clause
The present Law goal is the
special regulation of property on clause 396 from Civil Code, called
Property in Condominium.
All those parts of a
building, which could be liable to be usable in an independent way,
because they have an exit either to a common area or to public
thoroughfare, will be considered premises for this Act purpose.
2nd Clause.
This Law will be applicable:
a) To those communities
which have been constituted in accordance to what is disposed on the 5th
clause.
b) To those communities
which fulfil all requirements settled down on article 396th from Civil
Code and have not granted the constituent title of Property in
Condominium.
Those Communities will be
governed, in any instance, for the dispositions of this Act related to
juridical Property regime, of their exclusive parts and common elements,
as well as to the rights and reciprocal obligations of the co-owners.
c) To private real state
housing, in the terms stated on this Act.
CHAPTER II
About floors or premises
Property regime
3rd Clause
According to what is stated
by the regime of property on article 396 from Civil Code, the following
points correspond to the owner of each floor or premises:
a) The singular and
exclusive right of property on a sufficiently defined and susceptible of
independent use space, with the architectural elements and facilities of
all kinds, apparent or not, which are included inside their limits and
are exclusively used by proprietor, as well as those annexes expressly
indicated on the title deed, although they are located outside the
defined space.
b) The co-ownership of the
remaining elements, belongings and common services with other owners of
flats or premises.
Every flat or premises will
be attributed a participation quota according to the property total
value and related in hundredths from it. This quota will be used as a
module to determine the participation in duties and benefits at the risk
of the community. The improvements or damages of each flat or premises
will not alter the stated quota, which will only be to change for
unanimous agreement.
Each proprietor can freely
use his right, without being able to separate the elements which
integrate it and provided that the enjoyment transference does not
affect derived obligations from this regime of property.
4th Clause.
Division action will not
proceed to cease the situation which regulates this Law. It will be able
to be executed just by each proprietor pro-indiviso on a definite flat
or premises, bounded to him, and whenever the pro-indivision has not
been established as a purpose for common service or utility for all
proprietors.
5th Clause
The Property Title Deed for
flats or premises will describe, besides the property as a whole, each
one in particular, which will be assigned correlative numbers. The
description of the property must express the required circumstances on
mortgage legislation and all services and facilities which exist. That
of each floor or premises will express its extension, boundaries, floor
and annexes, such as garage, attic or basement.
In the same title he/she
will notice the participation quota that corresponds to each floor or
local, determined by the unique proprietor from the building when
beginning their sale for floors, for all the existent proprietors'
agreement, for award or for judicial resolution. For their fixation
he/she will take like base the useful surface of each floor or local in
connection with the total of the property, their interior or external
location, their situation and the use of it, which shows off rationally
that it will be made of the services or common elements.
The title will be able to
contain, also, constitution rules and exercise of the right and
dispositions not prohibited by the Law in order to the use or
destination of the building, its different floors or local, facilities
and services, expenses, administration and government, sure,
conservation and repairs, forming an exclusive statute that won't harm
third parties if it has not been inscribed in the Registration of the
Property.
In any modification of the
title, and safe what prepares about the validity of agreements, the same
requirements will be observed than those for the constitution.
6th Clause
The group of proprietors
will be able to settle certain rules to regulate coexistence details and
the proper use of services and common things, and within the statutory
ceiling. Those rules will legally bind any holder whether they are not
modified the expected wayform to come to agreements about the
administration.
7th Clause.
1. Proprietors of each flat or
premises will be able to modify the architectural elements, its
facilities or services when it does not impair or alter the building
security, their general structure, their configuration or external
condition, or it prejudice another proprietor rights, and the one in
charge of representing the community, should previously be informed.
He will not be allowed to
make any alteration in the rest of the property and if he notices the
necessity of urgent mends, he/she should tell it to the administrator
without any delay.
2. The proprietor and the
occupant of the flat or premises are not allowed to develop activities
which are forbidden by statutes for being harmful for the property or
because they infringe the general provisions about annoying, unhealthy,
noxious, dangerous or illicit activities.
The President of the
community, on his own initiative or that from the proprietors or
occupants, will require the one who is carrying out banned activities on
this section the immediate ceasing of them, as official warning to take
disciplinary action against him/her.
If the offender persists in
his behaviour, the President, by getting a previous authorisation from
the Proprietors Board, duly summoned to such effect, will be able to
file a cessation action against him/her. It will be carried out
adjusting to the rules which regulate declaratory proceedings if the
actions are not foreseen on this clause.
Once the claim has been put
in to the offender, together with a certificate of the reliable
requirement and of the certification from the agreement adopted by the
Board of proprietors, the Judge will be able to determine the immediate
ceasing of the forbidden activity with preventive character, under
provision of committing disobedience crime. He will be able to decide as
well all provisional measures that were necessary to ensure the
discontinuance order effectiveness. The claim will go against the
proprietor and, in its case, against the occupant of the house or
premises.
If the judgement were
approved, he could decide, besides the definitive ceasing of the
forbidden activity, and the compensation for damages and prejudicial
consequences which proceeds, the privation of the right to use the house
or premises a term under three years, in accordance to the seriousness
of infraction and damages caused to the community. If the offender were
not the proprietor, the order could declare extinguished definitely all
his rights concerning the house or premises as well as his immediate
dispossession.
8th Clause.
Flats or premises and their
annexes could be divided into more reduced and independent ones, and
enlarged by the aggregation of adjacent ones from building or reduced by
any part segregation.
In such cases it will be
required, besides the consent of the affected holders, the approval of
the Proprietors Board as well as the affected holders approval, to who
settlement of the new participation quotas for reformed flats concerns,
according to what is disposed on clause 5th, without alteration of the
remaining quotas.
9th
Clause
1. They are proprietor's
duties:
a) Respecting general
facilities of the community and other common elements, general or
exclusive for any proprietor included or not in their flat or premises,
making an appropriate use of them and avoiding damages or prejudices to
be caused.
b) Keeping in good
conservation condition their own flat or premises and exclusive
facilities, so that they do not cause harm to the community or to the
other proprietors, by compensating damages caused by their carelessness
or that of people who should be responsible for them.
c) Allowing in their house
or premises the repairings which the property service requires, and the
indispensable servitude required for the creation of common services
previously agreed for general interest, according to what is disposed on
the article 17th, and being the community responsible for compensating
possible damages.
d) Allowing the entrance in
their flat or premises to the purposes from the three previous sections.
e) Contributing to general
expenses for the proper maintenance of the property, their services,
loads and responsibilities which are not liable to be individual,
according to the participation quota determined on the Tittle Deed or to
what has been specially determined.
Credits in favour of the
community which derive from the liability of contributing to general
expenses for supporting, corresponding to imputable quotas to the due
part of the annuity in course, and to the immediately previous natural
year, they have the condition of preferential as far as the article 1923
from the Civil Code says, and they precede, for their satisfaction, to
those which has been enumerated in the sections
3rd, 4th, and
5th from such provision, without prejudice to
the established preference in favour of the salary credits on the
Workers Act.
The purchaser of a house or
premises in Property in Condominium regime, even with a registered Title
inscribed on Property Register, responds with his own acquired property
for the quantities he owes to the Proprietors Community, for the
maintenance of general expenses by the previous takers right to the
limit of those that are attributable to the due part of the annuity in
which the purchase takes place, and to the immediately previous natural
year. The flat or premises will be legally encumbered to such duty
enforcement.
The house or premises
transferee should declare to be up to date in the payment of community
general expenses or to express what he owes in the public instrument
through which the house or premises is transferred, whatever its Title
is. The transferor should provide a certification about the state of
debts with community at that time, and it has to coincide with his
previous declaration, without which he will not be able to authorise the
grant of the public document, unless he was specifically discharged from
such duty by the purchaser. The certification will be issued in a
maximum term of seven natural days from its application by people who
does Secretary functions, with the President approval who will be
responsible, in case of blame or negligence, for the accuracy of
consigned data and for damages caused by delay in its issue.
f) Contributing, according
to their respective participation quota, to the endowment of a
reservation fund which should be provided for supporting maintenance
works and property repairings
The reservation fund, whose
ownership corresponds to the community for all purposes, will be endowed
with a quantity that should not be inferior to five percent from its
last ordinary budget.
The community will be able
at their own expenses to subscribe an insurance contract which covers
the damages caused in the property, or to reach a permanent contract for
the property and its general facilities maintenance.
g) Taking into account the
legal measures for the use of property and, concerning their
relationships with the other neighbours, being responsible before them
for infractions and damages.
h) Informing the person who
acts as Secretary about his Spanish address in case he has to be
required for either notifications or calls of any nature, which are
related to the community matters. By default of it, the community flat
or premises will be considered the address notifications and calls, and
all those delivered to the occupants, will have juridical
effects.
If the attempted
notification or call were impossible to be practice at the place
prevented in the previous paragraph, it will be understood to be carried
out by the placing the corresponding communication on the community
bulletin board, or in a visible place of on a general use place fit out
for such effect, explaining the date and reasons for which they proceed
to this notification way. The Secretary of the community should sign it,
previous President approval. This way notification will produce full
juridical effects in a three natural day’s term.
i) Informing the Secretary
of the community about the flat or premises change of holdership, for
any means that allows to put it on record.
People who fail to fulfil
such duty, will go on being responsible for the debts with the community
although yielded after transmission, in a joint way with the new holder,
without any prejudice of relapsing.
What has been disposed on
the previous paragraph should not be pursued when any of the governments
organs settled down on 13th clause is aware of the flat or premises
change of ownership, by any other means or new proprietor's conclusive
acts, or when transmission is notorious.
2. For the application of
the rules from the previous section, expenses which are not attributable
to any flat or premises will be reputed as general ones, and the disuse
of a service will not exempt from the comply of duly duties, without any
prejudice of what is settled down on this Act 11.2 clause.
10th clause.
1. The community will be
obliged to carry out necessary works for the property and its services
proper maintenance and conservation, so that it should fulfil all due
structural, tanking, habitability and safety conditions.
2. Proprietors who are
unjustifiably opposed or delayed in the execution of the orders, which
have been enacted by competent authority, will be individually
responsible for the sanctions, which could be imposed by administrative
action.
3. In case of disagreement
on the nature of the works to be carried out, the Proprietors Board will
decide what is reasonable and appropriate. Interested parties will also
be able to request an arbitrary or technical judgement in the terms
settled down by Law.
4. The flat or premises are
affected by the payment of expenses derived from the realisation of
maintenance works referred on the present article, under the same terms
and conditions which were settled down on 9th clause for general
expenses.
11th Clause
1. None of the proprietors
will be able to demand new facilities, services or improvements that are
not required for the proper community maintenance, habitability and
safety, according to its nature and features.
2. Whenever some agreements
are adopted in order to carry out non-required innovations under the
previous paragraph provisions, and whose installation quota exceeds the
amount of three ordinary monthly payments of common expenses, the
dissident neither will be forced, nor his quota will be modified, even
whether he cannot be deprived of the improvement or advantage.
If the dissident wants, at
any time, to participate of the advantages of the innovation, he will be
obliged to pay his quota concerning fulfilment and maintenance expenses,
properly up-to-dated by applying the corresponding legal interest.
3. Innovations which become
useless some part of the building for the proprietors quiet enjoyment,
will require, in any case, the express approval.
4.Calls for contributions to
the payment of finished or future property improvements will be at the
expenses of the one who is the proprietor at the moment of the
liveability of affected quantities for the payment of such
improvements.
12th Clause.
The building of new floors
and any other alteration of the building structure, or of the common
things, affect the Title Deed and they should undergo the established
regime for its modifications. The adopted agreement will state the
nature of the modification, the changes it originates in the description
of the property all flats or premises, the change of quotas and the new
flats or premises holder or holders.
13th clause.
-
- Community government
Board remains as follows:
a) Proprietors Board.
b) President and, in any
instance, the Vice-presidents.
c) The Secretary.
d) The Administrator.
Other community government
positions could be appointed on the statutes or by the Proprietors Board
majority agreement, but provided that it cannot mean any disadvantage
for functions and responsibilities to third parties which Act attributes
to the previous ones.
2. The President will be
appointed by proprietors by voting, on a rota system or draw. The
appointment will be compulsory, although the appointed proprietor will
be able to request his relief to the Judge within the month after his
access to the post, by explaining the reasons because of which him does
it. The Judge will take a reasonable decision through the procedure on
the 17.3th clause, appointing the proprietor who should substitute the
President until a new appointment is appointed. The term should be
determined on judicial resolution.
They will go to the Judge as
well, when for any reason, the Board finds not possible to appoint the
President.
3. The President will be the
legal community representative, in any trial and out of it concerning
all matters which affect it.
4. The existence of
Vice-presidents will be optional. His appointment will be carried out
through the same procedure than the one for the President's appointment.
The Vice-president or Vice-presidents should substitute the President in
his absence, vacancy or impossibility, as well as help him in the
exercise of his functions in the terms established by the Proprietors
Board.
5. The Secretary's and of
Administrator functions will be exercised by the community President,
unless the statutes or the proprietors Board decide by majority
agreement, to dispose such functions separated from the presidency.
6. Secretary and
Administrator posts could be in one person or be appointed
independently.
Administrator position and,
in his case, that of Secretary-Administrator could be held by any
proprietor, as well as by natural person, for with enough professional
qualification and legally recognised to exercise those functions. It
could be also held by corporations or another legal person, in the terms
settled down on the legal system.
7. If the statutes of the
community do not dispose the opposite, the appointment of government
bodies will be made for one-year term. Appointed people could be removed
from their position before the expiration of the mandate by the
Proprietors Board agreement, summoned in extraordinary meeting.
8. When the number of
proprietors of flats or premises in a building does not exceed four
people they will be able to apply for the regime of administration on
article 398 from the Civil Code, if they expressly set it down on their
statutes.
14th Clause.
The Proprietors Board should
be responsible for:
a) Appointing and removing
people whom hold above-mentioned positions and to solving the claims
which the holders of flats or premises make against their actions.
b) Approving the expected
plan for expenses and incomes and the corresponding accounts.
c) Approving budgets and the
execution of all repairing works of the property, either ordinary or
extraordinary, and being informed of the urgent measures adopted by the
Administrator according to what is disposed on the article 20th
c).
d) Approving or reforming
the statutes and determining rules of interior regime.
e) Knowing and deciding
other matters of general interest for the community, taking the
necessary or convenient measures for the best common service.
15th Clause.
1. The attendance to the
General Proprietors Meeting will be personal or by legal or voluntary
representation, being enough writing signed by the proprietor to certify
it.
If any flat or premises
belongs pro indiviso to different proprietors they should appoint a
representative to attend and to vote in the meetings.
If the house or premises is
in usufruct, the attendance and the vote will correspond to the
proprietor who, except for stating the opposite, will be understood to
be represented by the tenant, and the delegation should be express when
they are agreements referred to the first clause on the article 17th or
extraordinary works and improvements.
2. Proprietors who are not
up-to-dated in the payment of all the due debts with the community at
the moment of beginning the meeting, and they have not refuted them
judicially or proceeded to the judicial or notarial consignment of the
owing sum, will be able to participate in their discussions, although
they will not be entitled for voting. The meeting minutes will show the
proprietors who have been deprived of the vote right, and whose person
and participation quota in the community will not be estimated to
effects of reaching majorities which are required on this
Act.
16th Clause
1. The General Proprietors
Meeting will meet at least once a year to approve the budgets and
accounts, and other times if the President consider it convenient or it
the fourth part of the proprietors require it, or a number of them who
represent at least a 25 % from the participation quotas.
2. Meetings calls will made
by the President and, in default, the meeting developers, by informing
about the matters to be dealt, the place, day and time at what it will
take place in first or, in its case, in second call. Notifications
should be made the stated way on article 9th. The citation will include
a list of the proprietors who are not up-to-date in the payment of due
debts to the community and it warn about the deprivation of vote right
if assumption on the article 15.2 happen.
Any proprietor will be able
to ask the Proprietors Board to study and give their opinion about any
subject of interest for the community. He should send a writing for the
President to that end, on which it is clearly specified the required
subjects to be dealed and including them on the following Meeting
agenda.
If most of the proprietors
who represent, in turn the majority of participation quotas do not
attend the Meeting, in first call, a second call will be made, this time
without quorum liability.
The Board will meet in
second call in stated place, day and time than in the first citation,
and it would be possible to meet the same day if half hour from the
previous one has gone by. By default, it will be summoned again,
according to the stated requirements on this article, within the eight
following natural days to the not-celebrated meeting, the citations
being filed if so, with a minimum of three days notice.
3. The call for the Annual
Ordinary Meeting should be made, at least, at six days notice, and for
the extraordinary ones, to be able to let all the interested people
know. The meeting can meet even without the President's call, provided
that all proprietors attend
17th Clause
The agreements from the
Proprietors Meeting will be subject to the following rules:
1ª. Unanimity will only be
possible to be required for the validity of agreements which imply the
approval or modification of the rules, which are included on the Title
Deed of Property in condominium or on the community statutes.
The establishment or
suppression of elevator, porter, front desk, surveillance, or other
common or general interest services, even when they mean the
modification of the Title Deed, or the statutes, it will require the
favourable vote from 3/5 parts of the total of proprietors who, in turn,
represent the 3/5 parts from the participation quotas. The leases of
common elements which have not been assigned a specific use in the
property will require, as well, the favourable vote from 3/5 parts from
the total of the proprietors who, in turn, represent 3/5 parts from the
participation quotas, as well as the directly affected proprietor's
consent, if he existed.
The carrying out of works,
or the establishment of new common services, whose goal is the
suppression of architectural barriers which hinder the access or
disabled people's mobility, when they imply the modification of the
Title Deed or statutes, will require the favourable vote of most of the
proprietors who, in turn, represent most of the participation
quotas
For above mentioned
purposes, those votes from absent proprietors to the meeting, properly
mentioned, who, once they have been informed about the agreement adopted
by the present ones, and according to the procedures stated on article
9th, do not declare their discrepancy to who exercises community
secretary functions, in a thirty natural days term, by any means which
allows to have a record of its reception, will be considered as
favourable votes.
The agreements validly
adopted according to what has been disposed on this rule, they oblige
all the proprietors.
2ª The installation of
common infrastructures for the access to telecommunication services
which are duly regulated on the Royal Decree-law 1/1998, of February
27th, or the adjusting of the existent ones, as well as the installation
of common or exclusive systems, to use solar energy, or necessary
infrastructures to accede to new collective energy supplies, will be
able disposed, at any proprietor request, by a third of the members of
the community who represent, in turn, a third of the participation
quotas.
The community will not be
able to have repercussions either on the cost of common facilities or
common infrastructures adjusting, neither on those derived from its
conservation and later maintenance, on those proprietors who had not
voted expressly for such maintenance at the Meeting. Nevertheless, if
they later requests the access to services of telecommunications or to
adjustments carried out in the pre-existents, they could be authorised
provided they pay their corresponding amount, properly up-to-dated by
applying the due legal interest.
Without any prejudice of
what has been stated previously concerning conservation expenses and
maintenance, the new installed infrastructure will have the
consideration of common element, according to what is stated on this
Act.
3ª the vote of most of the
total of the proprietors who, in turn, represent most of the
participation quotas will be enough to make the other agreements valid.
In second convocation they
will be valid the agreements adopted by most of the attending
proprietors, provided that it represents, in turn, more than half of the
value of their participation quotas.
When the majority could not
be achieved for the procedures stated on the previous paragraphs, the
Judge, at the request of deduced part in the following month at the time
of the second meeting, and listening to previously mentioned
contradictory parties, he will decide what proceeds ex aequo et bono in
a twenty days term from the request, making a pronouncement about costs
payment.
18th Clause
1. The agreements from the
General Meeting will be refutable before the Courts, in compliance with
what is stated on the General Procedural Act, in the following
hypothetical cases:
a) when they are contrary to
the Law or to the community statutes of the community.
b) When they are serious
prejudice for community interests, in benefit of one or several
proprietors.
c) When they mean a serious
prejudice for any proprietor who has not legal duty of suffering it or
they have been determined with abuse of law.
2. Proprietors who have
saved their vote at the meting, the absent ones for any reason and those
who unduly have been deprived of their vote will be legitimated for the
objection to these agreement. The proprietor should be up-to-dated about
all the payment of due debts with the community or to proceed previously
to the judicial consignment of the same ones in order to refute the
meeting agreements. This rule will not be applicable for objection to
meeting agreements concerning the setting or alteration of proprietors
participation quotas which have been mentioned on clause 9th.
3. The action will expire
three months after the agreement the meeting agreement has been
determined, unless acts are contrary to the Law or to the Statutes. If
so, the action will expire after a year. For absent proprietors, this
term will be computed starting from the agreement notice, according to
the stated procedure on article 9th.
4. Meeting agreements
objection should not cancel its execution, excepting when the Judge
decides it that way, with preventive character, at claimant application,
once the community has heard it.
19th Clause
1. The Proprietors meeting
agreements will be written on a minute book, which should be conducted
by the Register of Deeds in the regulatory disposed way.
2. Minutes from each meeting
should express, at least, the following circumstances:
a) Date and holding place.
b) The author of the call
and, in its case, proprietors who have promoted it.
c) Its ordinary or
extraordinary character and the information about its holding in first
or second call.
d) Attendants’ list and
their respective positions, as well as represented proprietors, with
indication, in any case, of their participation quotas.
e) Agenda of the meeting.
f) Determined agreements,
with a list of the names from proprietors who had voted for and against
them, as well as participation quotas which they respectively represent,
provided it were relevant for the validity of the agreement.
3. Minutes will be closed
with President's and Secretary signatures at the end of the meeting or
in ten following natural days. From their closing, agreements will be
executive, excepting when law decides the opposite.
Meeting minute will be send
to the proprietors, according the procedure stated on article 9th.
Minutes defects or mistakes
will be rightable whenever it expresses unequivocally the date and
holding place, the attending proprietors, present or represented, and
determined agreements, with indication of for and against votes, as well
as the participation quotas they respectively hold, and it is signed by
the President and the Secretary. This correction should be made before
the following meeting when the correction will be ratified.
4. The Secretary will keep
meeting minute books. He should also keep calls, notices, powers, and
other relevant documents from meetings, for a five years
term.
20th Clause
It corresponds to the
Administrator:
a) Looking after the house
good condition, their facilities and services, and making for this
purpose the appropriate warnings and provisions to the Courts.
b) Preparing the expected
expenses plan in advance and submit it to the approval of the
proprietors, by proposing the necessary means to face them.
c) Assisting for the house
conservation and entertainment, deciding repairs and urgent measures,
reporting immediately the President about it, or, in its case, to the
proprietors.
d) Executing the determined
agreements with regard to building works, making the payments and
collecting due debts.
e) Acting, in its case, as
secretary of the Meeting and safekeeping the community documents at
holders’ disposal.
f) All the other conferred
attributions by the Meeting Board.
21st
Clause
1. Mentioned duties on
sections e) and f) from clause 9th should be accomplished by the house
or premises proprietor in the time and form determined by the Meeting.
Otherwise, the President or the Administrator, if Proprietors Board
agrees it this way, will be able to sue someone judicially through the
procedure stated on this article.
2. The use of this procedure
would require the previous certification from the meeting agreement, and
the one who acts as the Secretary should approve the debt settlement
with the community, under the President approval, provided that such an
agreement has been previously notified to the affected proprietors in
the way stated on clause 9th.
3. Territorial jurisdiction
will correspond only to the Judge of the place where the property is,
and the collecting through a lawyer or barrister is not compulsory,
without any prejudice of what has been stated on the section 10 of this
clause.
4. The process will begin
with the succinct claim, and the mentioned certification on the number 2
from this article, will be enclosed. If the previous holder must be
responsible in solidum for the payment of the debt, and without any
prejudice of his right to repeat against the current proprietor, it will
be demanded jointly with him. Anyway the holder who is registered is the
one who should be the respondent.
5. Once the lawsuit has been
presented and given leave to go ahead, the Judge will call upon the
defendant so that, in a twenty days term , he must pay to the plaintiff,
by certifying it either before the Court or appearing in Court to
declare on an opposition writing the reasons for which he believes he
has not to settle the required amount or part of it. The notification
should be made at his home in Spain, previously designated by the
debtor, or by its default, at his flat or premises, under the official
warning that, whether he does not neither pay nor appear explaining the
reasons for it, an enforcement will be issued against him, according to
what is disposed on the following number.
6. if the defendant does not
appear in Court or he does not object to the demand, the Judge will make
an order, on which he will issue the enforcement, which will proceed
according to what is disposed for judicial decisions, for the owed
amount plus expected interests and costs and previous extrajudicial
expenses from the notifications related to debt liquidation, provided
that they have proceeded by notarial means.
The applicant of this
process and the enforced debtor will not be able to claim subsequently
in ordinary proceeding, the required amount or the refund of the one
obtained through execution.
Once the order is remanded
and issued, the debt will bear the legal interest from the increased
quantity in two points.
7. If the debtor attended to
the payment requirement, as soon as he settles it, he will deliver the
document on which the debt appears and all procedure records will be
shelved.
Nevertheless, he will pay
the mentioned costs, which have been pointed on number 10 from this
article and referred expenses on the previous number.
8. If the debtor objected by
alleging reasons, in order to refuse the whole or part of the payment,
the Judge, previous transfer to the plaintiff of the objecting writing,
will proceed to file oral trial, starting from the moment of the
notification for oral trial. Nevertheless, when objection has been
submitted, he could require general lien for the debtor's goods, which
are enough to face claimed quantity, as well as interests and costs.
The Judge will determine
attorney’s lien, in any case, without needing creditor’s deposit. The
debtor will be able to get rid of lien by standing bank guarantee for
decreed lien amount.
9. If the debtor appears in
due time and objects partially to the payment, alleging plusrequirement,
the objection will be admitted, only if he credits to have paid or put
at the plaintiff's disposal the amount he recognises as a debt, before
the filing of the claim. If the objection is bases in pluspetition,
general lien could only be required for the amount, which has not been
settled by the debtor yet.
10. Relapsing order will
have the strength of a judged issue.
Costs will be charged to the
litigant which has seen completely underrated their pretences. If the
claim were estimated partially, each part will bear costs caused to his
requirement and the common ones half-and-half. The sentence to pay court
costs will include the Lawyer's fees and those from the Barrister
corresponding to the winning party, if he had required their
professional services in the claim demand or reply.
11. Due quotas could be
accumulated during the course of the process, without implying the
proceeding back and after putting the claim in. Stages which have
preceded, are considered as common to the amplification. This faculty
will extend to the phase of the decision enforcement.
The accumulation of the due
debt with the community during the process, after the presentation of
the claim will require its previous attestation by means of a new
certificate from the approbatory payout agreement, which should be
issued in accordance to what has been disposed on section 2.
12. The appeal against the
judgement will not grant an application if the defendant does not
credit, when interposing, to have paid or consigned the clear amount to
what verdict of guilty contracts.
If the verdict condemns him
to the payment of clear amounts for non-fulfilment of terms or due
quotas, the appeal will remain void if during its proceeding the
appellant gives up paying or consigning, in due time, those of the same
nature which go expiring.
22nd Clause
1. The community of
proprietors will be responsible for its debts to third parties with all
funds and credits to its favour. Subsidiarily and it foresaw payment
requirement to the respective proprietor, the creditor could go against
every proprietor who has taken part at the due process on his
corresponding quota for the unpaid amount.
2. Any proprietor could
object to the execution if he certifies that he is up-to-dated in the
payment of due debts with the community as a whole, when the mentioned
appearance in court on previous section is filed.
If the debtor pays at such
appearance time, he will be responsible for the costs which have been
caused till that moment, in the proportional corresponding part.
23rd Clause
The regime of Property in
Condominium lapses:
1. By building destruction,
excepting for an agreement of the opposite. Destroy will be considered
when the cost of reconstruction exceeds 50% of the property value at the
time of the catastrophe, unless the excess of this cost is covered for
an insurance.
2. By conversion either in
ownership or ordinary co-ownership.
CHAPTER III
About the regime of the private
real state properties.
24th Clause
1. The special regime of
property stated on article 396 from the Civil Code would be applicable
to that private real state property which gather the following
requirements:
a) including two or more
buildings or independent plots whose main destination is the house or
premises.
b) If holders of these
properties, (or houses or premises on those which are divided
horizontally), participate with inherent character to this right, as an
indivisible co-ownership regarding other real state elements, facilities
or services.
2. Private real state
properties which have been mentioned on the previous section will be
able to:
a) Be constituted in a
single community of proprietors through any of the stated procedures on
the second paragraph on clause 5th. In this case they will be subjected
to this Act dispositions, which will be entirely of application.
b) Be constituted in a group
of proprietors' communities. To such purpose, the new community Title
Deed should be required to be executed by the unique holder of the
property or by the Presidents of all the called communities to compose
it, being previously authorised by majority agreement by their
respective Boards of Proprietors. The Title Deed will include the
description of the real state property as a whole and its elements,
facilities and, common services. It will also determine the
participation quota of each one of the integrated communities, which
will be jointly responsible of their duty to contribute to the
supporting of the communities’ group general expenses. The Title and
statutes of the communities group will be recordable on the Land
Registry.
3. The group of referred
communities on the previous section will enjoy, to all purposes, the
same juridical situation than that of the communities of proprietors and
it will be governed by the dispositions of this Acts, with the following
specialities:
a) The Board of Proprietors
will be compound, except for a contrary agreement, by Presidents of the
communities integrated in the group, who will be in charge of the
representation of proprietors group from each community.
b) The adoption of
agreements for which law requires qualified majorities, will demand, in
any case, the previous majority securing from each one of the meetings
of communities of proprietors which integrate the group.
c) Except for a contrary
agreement from the Board, what has been disposed on clause 9th from this
Act about reservation funds, will not be of application to the
communities group.
The competence of groups of
community government bodies, only prevails for real state elements,
facilities and common services. Their agreements will not be able to
impair, in any case, powers which correspond to government bodies of the
communities of proprietors integrated in the group of communities.
4. Private real state
properties which do not adopt any of the mentioned legal ways on section
2nd, will be applicable aditionally, dispositions on this Act with the
same stated specialities on the previous section, concerning agreed
pacts among the co-proprietors.
Additional provision.
1. The constitution of the
reservation fund regulated on article 9.1 f), without any prejudice to
adopted dispositions by Autonomous Communities in the use of their
competencies, will be subject to the following rules:
a) The fund will be
constituted at the moment of being approved the ordinary community
budget by the Board of Proprietors, corresponding to the following
annual exercise after the present disposition becomes effective.
New communities of
proprietors will constitute the reservation fund when they approve their
first ordinary budget.
b) At the moment of their
constitution, the fund will be endowed with not less than 2,5% amount
from the ordinary budget of the community. To such purpose, proprietors
will previously make the necessary contributions according to their
respective participation quotas.
c) When the ordinary budget
corresponding the following annual exercise after that one in which the
reservation bottom was first contributed, the endowment of it will reach
the minimum amount stated on clause 9th.
2. The endowment of the
reservation fund will not be less than the fixed legal minimum, At any
time during the budgetary exercise.
Removed quantities from
funds during the budgetary exercise in order to assist maintenance
expenses and repairs of the property, which are allowed by the present
Act, will be estimated as integral part of it, for the figures of its
minimum quantity.
Necessary contributions will
be made at the beginning of the following budgetary exercise in order to
cover removed quantities from the reservation fund, according what has
been stated on the previous paragraph.
Unique additional
provision
1 Article 396 from the c.c.,
will be written in the following terms:
The different flats or
premises in a building, or parts of them liable to independent use for
having an exit to a common element common or to the public road, will be
object of separate property, which have an inherent a co-ownership right
on necessary common elements of the building for their appropriate quiet
enjoyment, such as the floor, foundations, roofs, structural elements,
among which there are the pillars, beams, forgings and main walls;
facades, with external sheatings of terraces, balconies and windows,
including their appearance or configuration, the closing elements which
shape them and their external sheatings; the entrance hall, the
stairways, porch, corridors, passes, walls, moats, patios, wells and the
areas for elevators, tanks, meters, telephonies or to other services or
common facilities, even those which were of exclusive use; elevators and
facilities, pipings and gutters for drainage, for water, gas or
electricity supplies, even those for use of solar energy; those of
sanitary hot water, heating, conditioned air, ventilation or smoke
evacuation; those for fire detection and prevention; those for
entryphone and others for the building safety, as well as those of
collective antennas and other facilities for audio-visual services or
telecommunication, all of them just to the private area entrance;
servitude and any other material or juridical elements which are
indivisible for their nature or destination.
Parts in co-ownership are
not liable in case of division and they will only be able to be
transferred, encumbered or confiscated together with the exclusive part
of which they are inseparable annexes.
In case of alienation of a
flat or premises, the owners of the other ones, just for that power,
will not be entitled for pre-emption.
This type of property is
governed by special legal provisions and, in what they allow, for the
will of interested ones.
2 without damage of the willing one
in the previous section, Introduced modifications on the Civil Code and
on the Mortgage Act for clauses 1 and 2 of Act 49/1960, of July 21,
about Property in Condominium, they remain in force with their actual
writing.
Unique transitory provision.
Contained rules on the Act article
21st from Property in Condominium Act, according to the new writing
conferred to that order by the present Act, will not be applicable to
proceedings which have already started according to the previous
effective legislation. They will go on being issued in accordance to it
until its result.
Final provision.
1. Whatever general
provision which is against to what has been stated on the present Act
are abolished. Contained clauses on the statutes of the communities of
proprietors which are against or incompatible with this Act remain as
well without any effect.
2. The statutes of the
communities of proprietors will adjust themselves, in one-year term, to
what has been disposed on the present Act.