FAQ: Complexes

There is nothing in the Law of Horizontal Division or Spanish Law to prevent anyone having a pet on a complex. I often hear about presidents or complexes that introduce “no animals” rules and the simple fact is that they have no legislative power to introduce such a rule, and cannot enforce it. The only issue for the law is whether an animal is loose, or whether an individual owner puts a “no animals” clause into a rental contract. A community or its officers cannot be above the law and introduce restrictions on owners that private property law does not impose.

Having said that, Spanish law legislates against loose animals in ALL places, and this includes communal areas of complexes. Communities are, moreover, governed by the Law of Horizontal Division which is only ever concerned with owners, so by default, only owners actually have an automatic right to keep pets on complexes: tenants may do so, but only if their contract expressly permits it or, at least, does not prohibit it. A community has no legal right or power to “ban pets”, only the owner of an individual unit in a complex can decide whether or not pets enter that unit. The law does require any pet, however, to be kept on a lead in communal areas, and despite cat owners’ frequent protests, this applies to cats as well as dogs, and both must be chipped and registered (see HERE).

Please note that some dogs are deemed “potentially dangerous”, and specific rules apply to them. Please see HERE.

First of all, the issue is one of disturbance, and there is no need (nor ability) to revise the statutes because there are rules in the Law of Horizontal Division against nuisance. This is additional to whatever internal rules your community has (internal rules are different to the LHD and the statutes). So you will already have rules concerning the problem. The problem is enforcement. (Please also see the answer above on dogs in general on complexes).

Whether the dogs are registered, the number of dogs that someone has, the length of time they are left, all of this is nothing to do with the community, I’m afraid. All that concerns the community is the level of disturbance and nuisance caused … unless it’s a case of animal cruelty, which is how a dog left all day on a balcony is likely to be classified. In such a case the police need to be called, and will attend.

In terms of noise problems, the community could introduce a fine system (though this is legally suspect), or it might be constructive to create an informal owners’ interest group against dogs, and all contribute to hiring a lawyer to approach the Ayuntamiento’s environment department (which is the place to start): in my experience they only listen to lawyers. This is probably the most effective response to a situation that will have the sympathy of many, I suspect.

Yes. If no-one agrees to stand for election, then an owner can be co-opted. Evidently, though, it is better if the officials are happy to take on their responsibilities, rather than having them forced upon them.

No. Every owner on a community is a part of that community, and a committee is simply a mechanism to streamline the management. People frequently ask specifically what the role/legal status is of a vice president, and the answer is that there is none in terms of a vice VP as such. Article 13 of the Law of Horizontal Division says that the election of vice presidents (plural!) is entirely optional, and that the function is to substitute for the president as and when required – so a VP becomes the president under certain circumstances of absence or inability, rather than having a specific role in his/her own right.

An administrator can be any owner, or if not an owner, someone who is professionally qualified as an administrator. Some, therefore, will have little expertise, others will be fully qualified – and even when qualified, will have different ideas and interpretations of the law. In Spain, ultimately, only lawyers – and in fact only the Courts – can give definitive answers and rulings.

The President must be an owner, but the secretary/administrator does not. They can be the same person. If the administrator is not an owner, s/he must have a particular professional qualification. The officials of a community do not have to be resident, either on the complex or in Tenerife itself.

No. The replacement of an administrator always has to be the result of a vote at an AGM. If there was gross negligence, however, or other very serious issues, which could be proven legally (and probably with a lawyer’s backing), then an EGM could be called with the replacement as the sole item on the agenda. Other than that, I see little option but to wait for the next AGM and meanwhile, lobby for as many votes as possible – and make sure of proxy votes from absent owners – and put together a strong case at the next AGM. Another important thing in the meantime is to create and maintain a diary of “offences” and incompetence, etc., and make sure this gets to all owners in advance of the meeting – in both English and Spanish.

In law, yes, the president is the figurehead who bears the legal responsibility for the community. This is why the president has to be the one issuing denuncias, for example, or attending court if there is a legal issue. He is the “community in person” in legal terms. In the last few years, specifically since 2013, the personal liability – legally and financially – of presidents has increased significantly, and the association of presidents and administrators recommends that presidents take out liability insurance to safeguard themselves from any action against them for errors and/or omissions (link).

Presidents are legal figureheads for communities, and to a large extent that is all they “do”. Often there’s a misconception that presidents are somehow a community’s police, controlling disturbances and ensuring order, but that is a responsibility of the entire community. Administrators, for their part, have the sole function of ensuring the smooth running of the community legally, financially, and in terms of information flow. Both president and administrator can only operate within the law and what they can do is prescribed by decisions of the community as determined by vote at general meetings.

In practice, it’s unworkable if the president is restricted by that, and there’s an understanding that small day-to-day matters can be conducted within having to call a general meeting. HERE is the code of practice for presidents of communities from the website of APAF, the Asociación de Presidentes de Comunidades y Administradores de Fincas (association of presidents and administrators). Over the last few years, specifically since 2013, the personal legal and financial liability of presidents has increased significantly, and the association of presidents and administrators recommends that presidents take out liability insurance to safeguard themselves from any action against them for errors and/or omissions (link). Administrators will usually be registered businesses and so have their own liability insurance.

A community is not a private fiefdom. A community can select a different president and a different and/or separate administrator … in fact this is a vote they have to take at every AGM. You don’t need a court to remove a president or administrator, just a vote an AGM or EGM. If necessary, call an EGM with 25% like-minded other owners. Do bear in mind, though, that it is certainly saving the community money because administrators have fees, sometimes quite considerable ones. As to answering questions, if questions are put at general meetings, officials are obliged to answer them! Beyond that, however, neither president nor administrator is at the community’s beck and call so it’s a matter of judgment as to whether he is being unfairly pressured, or being arrogant. Obviously similar situations will be viewed differently by different people with different perspectives.

The only thing community debtors can’t do is vote. Presumably they won’t get too many votes if they do stand for office!

The agenda of every AGM should have an item authorizing the president to take legal action against defaulters, plus the authorization for him/her to use whatever legal assistance necessary to do this. This then gives the community, via the president as a legal figurehead, a legal route to take action.

There is little that can be done outside this legal route, because debtors have a legal right to use all facilities … unless the statutes say that they can be deprived of their rights to non-essential communal facilites, e.g. swimming pool or tennis court. Increasingly, communities with multiple debtors are changing their statutes to allow such owners to be banned from non-essential facilities.

René of Hestria says that the item is put on the agenda in the following form:

Proposal for the partial modification of the Community Statutes in relation to the use and enjoyment of the common swimming pool. Discussion and agreements to be adopted according to the following proposal:

“Access to and use of the community swimming pool is prohibited for all owners who have debts with the community due to the non-payment of two or more quotas and/or extraordinary payments duly passed by the general meeting, until such a time as the debt is cleared, without prejudice to their responsibility to continue contributing towards the costs incurred due to the said common element.”

Changing the statutes needs a unanimous (100%) vote of the people present in the meeting. Those not present have 30 calendar days after the minutes have been sent out to declare their disagreement to the secretary of the community, without which the resolution is adopted. (Law of Horizontal Division article 17.8).

No. Their community fees must be paid up to date or whoever is doing their buyers’ conveyancing won’t be able to get the required certificate from the administrators saying they are not in debt. Their unpaid community fees will be registered as a debt against their properties and will need to be cleared before a sale is notarized. At that point, they will either have to pay them before the notary will allow the sale to go through, or they will be deducted from the purchase price. This assumes that the buyer does not renounce any rights he has to this, which he is legally able to do even though it would be unwise, especially since a new owner is liable for past community debts for the year in which the purchase took place plus the three years prior to that.

The only time debtors can be announced and publicly displayed is in the call to an AGM, where they and the amount they owe have to be listed in order to determine who has a right to vote at that AGM. AGMs normally coincide with the end of communities’ financial years (different to the Spanish tax year which is always Jan-Dec), and so AGMs are when a community’s financial year closes and its accounts are signed off – inevitably, then, this is the only time that the community can determine who is actually “in arrears” in a legal sense. The list can only be published, in individual communication to owners and on the public notice board, at the call for an AGM. There are many communities, however, who forget to take such notices down so in effect they are they on display the whole year.

No. These are sacrosanct under the law. They cannot be disconnected, and certainly not as punishment. For what it’s worth, however, I have known an administrator disconnect the water to an apartment which was heavily in debt; apparently there was a problem with “flooding”, and the entire water supply needed to be disconnected for a short while. Everyone who was then up to date with community payments was, of course, immediately reconnected …

Years, usually, because the courts do not prioritise such cases. As to minimum amount, I’m not aware of any, but it would make no sense for a community to choose this option until the debt was fairly substantial simply because of the costs and time involved. Once it does get to court, though, a debtor’s property can be embargoed and eventually could be appropriated and sold at auction.

Yes. It is only voting from which they are excluded.

Any and all alterations or works – even minor internal repairs – need permission from the community plus an obra menor (minor works) licence from the local ayuntamiento. When it involves internal and invisible work, most people don’t get one because the council charges a small percentage of the cost of the works for the licence (check individual councils for specific percentages and particular types of works). Where works are visible, however, or where they will cause obvious disruption or noise, it is always advisable to get a licence to avoid a possible denuncia.

More generally, owners cannot alter the external appearance of their property at all in any case, because that is in breach of the conditions of living in a community dealt with by the Law of Horizontal Division, conditions which owners agree to and confirm by signature in front of the notary as part of signing the escritura to buy the property. That law requires communities to have a uniform model for design, colours, etc. for everything including wall colour, awning fabric and design, fences, etc.

This is governed by environmental bylaws and so can vary slightly in different municipalities. Individual communities may also have their own rules, so the specifics need to be clarified by the adminsitrator in each case. Generally, though, workmen can make a noise between 8am (9am if heavy machinery) in the morning and 9pm, Monday to Friday, and between 9.39am to 9pm at weekends.  

No-one needs to go to court over this sort of issue, at least not as a first resort. Ideally the community, but if necessary an individual owner or group of owners, should just report it to the ayuntamiento. Since the works as described amount to an appropriation of communal property, it is essentially theft, and so cannot have been legal … and so by definition cannot have had a licence from the council. Beyond that, the community needs to decide in a general meeting that it will take legal action to recover its own property from the owner who took it. What other owners cannot do is just invade that appropriated land: they couldn’t step onto the transgressing owner’s private freehold, and in these circumstances, a part of the communal area has been taken and incorporated into a private freehold. As such, it is the subject of a judicial process, and cannot just be invaded.

They will be denounced in the first place, normally to the Ayuntamiento for works carried out without a licence. If work continues, or is not restored to original state, then the community as a whole will vote, either at the next AGM or an EGM, for legal proceedings to be initiated. Assuming the resolution for legal action is passed by majority vote, the matter will then move on to the Courts, where the complex President takes the action and deals with the Court proceeding as the legal figurehead for the community.

First of all, the law on lifts in higher buildings is that in blocks of more than 4 floors (not 4 floors or more) a lift must be installed in new constructions, but is not obligatory in older ones where it was not part of the original construction. A community can vote to install one in older buildings with a vote of 60% regardless of number of floors. Having said that, the Law of Horizontal Division allows (requires) the community to carry out works for disabled accessibility purposes. This is therefore not a situation with a clear answer. Some people asking this question have suggested dividing up a community, but this cannot be done: it is what it is, but in the event that a minority wanted a new lift, negotiation would be needed as to both installation cost, and ongoing running expenses. This is best discussed at an AGM.

I am assuming that it is a residential complex, and as I said in THIS post a long time ago (scroll to 20 July 2011):

it is in fact possible, within certain constraints, that residential communities could engage in touristic letting. These constraints would make it difficult to achieve, but not necessarily impossible. Providing that a community’s statutes do not expressly prohibit it, and a vote was legally passed by the community and achieved the required percentage, then the community could set up a commercial entity – either an SL company or an Asociación – which would apply for a touristic licence. Any bookings would be through this entity and managed by it as in the case of a touristic complex. Providing that the community complied with every requirement for touristic complexes, the government could not in law refuse to grant a touristic licence. The government could not even drag its feet, because under the Administrative Silence Act, it has six months to respond, or the licence is awarded by default. All this would not necessarily be easy for a community to achieve, but it is theoretically possible.

The required percentage is 100%, and there would inevitably be significant costs involved for the Community to upgrade the complex to meet standards for a licence.

As far as I’m aware it’s six years old.

Unfortunately, the fact is that children are generally not allowed to play in a complex. Obviously, if the children are quiet it’s likely that no-one will complain, but the children have no actual rights to play. From the point of view of a complex, those who are disturbed by children are the ones being harassed, not you. Remember that the principal functions of a complex are basically the management of the community and communal areas, and usually, there is no designated play area. Complexes in Spain are not child friendly, which is why so many children in Spanish areas tend to play in play parks.

The minutes must be signed by the President, first of all, so if they are not as you remember, this needs to be addressed immediately and challenged with the President when the minutes are received. If you get nowhere and you consider the issue to be important, you will need to take further action. René Campen of community administrators Hestria has supplied THIS to outline the situation and explain the procedures which need to be followed.

The law doesn’t say anything about this, and Spanish is naturally the default language, but the community can, at an AGM, decide to conduct meetings or issue minutes in other languages, but it is entirely discretional.

You need a petition by owners representing more than 25% of the voting power, presented either to the President or administrator.

Yes, six days. If less than six days notice is given, the meeting is clearly illegal, and it cannot happen, but Spanish law doesn’t set out what happens next when it does occur! You can evidently declare the meeting illegal, but what benefit that will have, perhaps to other owners who are present and want it to proceed, I don’t know. If you are seriously affected by it, then you or a legal representative could turn up and insist that it is not held and postponed until a future date …

Yes, there’s a deadline to give an issue to the administrators for inclusion on the agenda. I’m not certain what that is, but think a week – the administrators will be able to confirm for you.

What you’ve been told is quite right. Spanish meetings do not have an AOB section. What they have instead, at the end of meetings, is a Questions and Answers section, and anything in this section is not an agenda item, and so cannot be the subject of a proporsal, resolution or vote. Items must be on the agenda to have a legal bearing in the meeting.

The minutes must be signed by the President and the Secretary within ten days of the AGM, though the law does not mention a deadline for distribution.

Votes in an AGM are counted two ways – first as quota, but also individually, and in this second vote multiple owners count as just one member of the community along with every other owner. If there is no way of reconciling the two types of votes, then it goes to Court for an independent judgement. I have known many owners group together to take their own lawyer to such meetings to ensure they run as they should, particularly where there are possible conflicting interests in those who are running the meetings.

AGMs and EGMs are general meetings of the Community of Owners – not residents. As such, owners are the only ones who have a right to participate in such meetings. I doubt you’d be physically prevented from attending the meeting but unless an owner makes you a proxy, you would be unable to speak or vote because you are not an owner. With a proxy, however, you become the owner’s voice – and it is irrelevant whether you are a tenant, a friend, or a formal representative of that owner. The owner should find out from the community’s administrator if there’s a particular form they use or whether they will accept a simple email instruction. In either case, they will need to identify themselves and you with full names and NIEs.

No. The LPH is specific that any owner can ask the AGM to discuss a matter, and that the procedure is to write to the president of the community specifying the subject they want added to the agenda. If this is not happening, then you and other concerned owners need to vote to appoint a new president, and/or consult a lawyer to attend a meeting chaired by the old president with you.

No, there is no limit to the number of proxy votes any community member might hold.

​The simple answer is that you are giving someone a proxy to vote, and so they become your voice at the meeting, but they can vote as they see fit with your voice. Indeed, things might arise at the meeting of which you could not be aware beforehand, and so restricting someone with a proxy makes no sense anyway. Having said that, since the agenda details in advance the items to be discussed, one could very reasonably expect that someone with a proxy would know how s/he is expected to vote, and given that minutes are distributed after the meeting, both proxy and owner will find the result openly stated so little can be done that’s underhand. There is no legal requirement, however, even if there’s a perceived ethical responsibility. ​

There will need to be a derrama, a one off charge levied to pay for the works. These payments are divided by the original coefficients assigned to the apartments, though a community can vote to allow them to be divided in equal parts among the properties.

The basic rule with a derrama is that owners cannot be forced to pay if the sum is greater than three months’ community fees, but those who refuse or are unable to pay are still entitled to use any amenities provided as a result of the derrama paid by others. In an obscure way, this rule is intended to facilitate agreement over the amount of any derrama for facilities which might not be desired by all, or required for emergencies.

You can’t really “negotiate”. You have to pay as the community has decided. A derrama is a one-off payment agreed by owners, not imposed on you by a management company or an authority – so who would you negotiate with? It is your fellow owners who have decided this, and they have clearly already decided that it is to be paid in two installments. In this respect there’s no “they” about it: the community is you and your fellow owners. Once a community has determined to raise the money and contribute accordingly, that is a legally binding decision by the owners to impose that official charge on themselves, and so yes, those who don’t pay will be classed as debtors – presumably they will have raised this in the meeting where it was decided. Ultimately, it’s a decision taken by democratic vote, and there will always be results that some don’t like; that’s by the nature of communities or any other democracies. To ensure you have your say, you could always give someone your proxy to vote on your behalf in meetings you can’t attend.

The community fees are set at the amount agreed for the budget at the AGM. This sum is then divided among the owners according to their quota, i.e. their coeficient, a percentage share of the community that is determined as part of the building licence procedure before apartments are ever sold, and which should appear in every annual statement of accounts.

Technically, the president can’t spend anything without agreement from an AGM or EGM. In practice, this is unworkable, so it is informally understood that he/she may spend on a day-to-day basis on items essential for the running of the complex, provided these expenditures are of a modest nature. The extent of this freedom is undefined, but 10% is reasonable. Non-urgent and unnessary items are most certainly not included in this figure, and the commissioning of expensive artwork would certainly require prior approval from owners. Unless, of course, a previous AGM has formally agreed such a freedom.

Ultimately, they can issue a denuncia because it is a legal obligation for accounts to be supplied … not least in every AGM where their approval is the first item on the agenda. An administrator or president can hardly comply with this legal requirement if the accounts aren’t physically there to be approved! I have also known owners group together to take their own lawyer to such meetings to ensure they run as they should, particularly where there might be possible conflicting interests in those who are running the meetings.

An administrator is a certified professional, and as such, it is the community itself, which carries out any “auditing” – in the sense that it is understood in the UK. Obviously there are other accountants that a group of community members might employ if they are not satisfied. Remember that all owners have the right to inspect any document pertaining to the community, not just at the AGM. It should be within reason though, and I suspect that monthly spread sheets are unrealistic. Important too, is the fact that any agenda must be sent out in advance to members of the community when the AGM (or EGM) is convoked. The accounts must be appended for prior examination, expressly for owners to satisfy themselves beforehand.

No. A president cannot do this, nor can a community give individual owners an economic sanction for infringing the internal rules or the statutes, as the community has no sanctioning power. I have known communities do this, but I am assured by qualified administrators that a community is not a “legal personality”, and as such can only start court proceedings against an owner and it is up to the judge to decide.

No, the community’s funds cannot be frozen, it would make the community incapable of functioning. Indeed, there will be wages to pay, bills to settle, and only the courts could freeze such accounts. That of course is where your situation will end up if the community cannot agree their final version of the accounts. I am grateful to qualified administrator René Campen of Hestria for the following answer:

Community accounts are normally only rejected by the majority of the owners if there is no faith in the administration anymore. Normally, and in the same meeting, a new administrator will be elected who checks afterwards if nothing illegal or improper happened. If not, the (not approved) accounts will be printed in the minute book and that´s it.

It is something else if for example money is missing or when any other form of fraud comes to light, because than court procedures could be started by the community or by an individual owner (who did not vote in favour at the point: approval of the accounts).

To me it is not clear what the benefit is of doing the accounts again, it is not rocket science and doing them again should come to the same conclusions. What happens often is that a balance is not presented in the meeting and this already makes it impossible (in my point of view) to approve the accounts. However this is something that can be sorted quickly and it is not necessary to do the accounts again.

To come to a conclusion: It is no option to freeze the accounts as here above very well explained by Janet and there is no legal obligation to convoke an extraordinary meeting. However, if it was my community, I would strongly advise the president to convoke an extraordinary meeting to clarify the accounts.

Yes, it is.

If the nuisance is just to one or two neighbours, it is up to those neighbours to sort it out directly as an issue between neighbours, because each owner is a part of the community. If the disturbance is greater than this, though, then the president should be contacted with a view to organizing police involvement. The fact is, though, that all owners form the community, and it is up to the community as an entity to enforce decent behaviour. This means that any owner can, and should, enforce standards, and is entitled by law to do so – indeed expected by law to do so. The President is not the “complex police”, but a legal figurehead, and ultimately, in the worst cases, the Courts can deprive a nuisance owner of the use of his/her own property for up to three years: if the culprit is a tenant, the Courts can summarily evict the tenant and overturn any rights s/he may have by meas of a contract.

Community rules have to be made by the community, the president has no power to do this. You must have an administrator, so ask them to put the item on the agenda of the next AGM. And ensure that the president’s re-election (compulsory every year) is also on the agenda …

By law, communities have to provide national Spanish TV channels, and anything else is entirely optional. It is not a matter of discrimination against anyone of any nationality, just a legal requirement to provide basic TV coverage of the main channels in the country we are, after all, in! So yes, your administrator is correct, but your interpretation of what s/he said is not.

No. The electric room is not actually community property as such, but is private to Unelco. Same applies to the telephone room, which is private to Movistar/Telefonica. The keys to other rooms, including the pool room (assuming you mean where the machinery is) are restricted to whoever is responsible for them, in practice this is usually the president and the maintenance man. They themselves do not even have keys to the electricity room, and may have keys to the telephone room but only to provide access to engineers.

If the water is coming from an area which belongs to your neighbour’s freehold, then s/he is responsible and it should be sorted out by liaison between yours and your neighbour’s insurance companies. If there are further issues with construction faults these will then be taken up with community’s insurers in due course.

Normally, every freehold property on a community is on the inside of an overall freehold area, and the external parts to individual components belong to the community – hence “communal areas”. This means, therefore, as an example, that you have no right to paint the outside of your property because the outside surfaces are not technically part of the individual freehold, but of the freehold of the community. In terms of the roof specifically, it too is communal property and the community has the responsibility to maintain it. As with the fronts of properties, owners do not even have right of access to the roof above their own property (unless of course there is intentional access for a roof terrace) nor a right to place something on it (such as a TV aerial).

The short answer is yes s/he can. If there is a problem on communal property which requires urgent attention, the community is entitled to invade the freehold of any owner to redress the matter, if there is good reason to do so. From the community’s point of view, the urgency or seriousness of a leak, nor necessarly the source, is not known until experts are called in, so s/he is entitled to commission a builder to go in and fix whatever is necessary. The overriding legal principle is that a property is occupied by its owner, and if not, it it at the risk of the owner if something like this takes place when it is empty. If you had been in residence, of course the official would have been required to discuss the matter with you, but s/he is not required to make a phonecall if you are not. I doubt whether your claim for damages would be successful unless you could demonstrate gross negligence on the community’s behalf.

There are specific rules for communities under provisions in the Spanish Constitution for the protection of the rights of disabled people. Specifically, there must be direct disabled access by ramp from the street to communal areas, with no steps forming barriers to wheelchairs, and with appropriate width and space for turning. The community is entitled by law to spend up to 12 times a monthly community fee for works to make the complex disabled accessible, the works being subject to agreement by the community and resolved by arbitration if agreement is impossible. Ultimately your administrator will be up to date on current legislation for disabled access at any given point in time.

The issue is covered by various laws, including the Law of Horizontal Division, as well as by the specific municipal environmental regulations that will be in place for the particular area, and in addition, may be governed by individual rules introduced in the community concerned.

Given that there will therefore be some flexibility, the general rule is that works may not start before 8am in the week (Monday to Friday), and not before 9.30 on Saturdays, Sundays and fiestas. Works should finish by 9pm on any day.

René Campen, a qualified administrator, says that your president is right, and that live pictures visible for everybody are illegal because of the data protection act.