FAQ: Complexes

Complexes in Tenerife are mainly (though not solely) governed by the Ley de propiedad horizontal (Law of Horizontal Division), and there are links Spanish and English versions on the Resources page. Below are some of the questions I’m most often asked.

Some questions, such as those concerning the specific percentages required for various votes, need to be answered by qualified administrators. If you don’t already have one, you could consult someone like René Campen of Hestria (website HERE), a generous adviser to this site and a qualified administrator.

Just click on any question or the + at the side to expand it.

Animals

Can I have an animal on a complex in Tenerife.

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.

What can we do about an horrendous problem with dog noise? Can we modify the statutes to restrict the numbers of dogs people have? Must they be registered/can they be left unsupervised for hours on end/can people have as many dogs as they like? Is there any legal redress for owners who are disturbed by dogs barking day and night?

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.

Officials

Can a president be elected without his/her consent?

Does the committee have any legal status?

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.

Does the administrator have to be a specially qualified person, and if not, how can they learn about the law?

Do the officials (e.g. President), have to be owners, and do they have to live in Tenerife?

Has the President got any authority to sack an administrator who is not doing the job correctly?

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.

The lawyer who represents our community has explained to the community committee that the president is solely liable for decisions made by the community that are found to be incorrect. Is this true?

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).

What do presidents and administrators actually do?

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. 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.

Our President refuses to answer questions from some owners simply because he doesn’t like them, can he do this? / Our president behaves like he owns the complex, surely he has to consult other owners? / Our president is also the administrator and refuses to talk to us about expenses saying he is saving us money, surely we're entitled to know what's going on? (and any number of variations on the same question).

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.

Debtors

Are community fee debtors precluded not only from voting at the AGM but also from standing for election as officers?

What can a community do about perpetual debtors?

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).

If debtors don't pay, won't they just get away with it when they sell?

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. Either way, they will pay then if they have not paid before.

Can debtors be named and shamed?

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.

Is it legal to cut off debtors' water and electricity

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 …

How long does it take to get a person into the court once they have been denounced and is there a minimum limit to what they would owe a community?

Can debtors be included in the 25% quota that calls for an EGM? I know they can't vote in these meetings but can they be among those who call them?

Alterations

Can I repair or alter my property as I like as long as it's within my own boundary?/ Can I alter the external appearance of my terrace, or build an extension on it? (and any number of variations on the same question).

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.

What times can workmen make a noise in a complex?

Neighbouring owners have extended their terrace into communal areas / just taken communal land and fenced it in without a permit from the ayuntamiento / without community approval, who can do what about it? / do we need to go to Court? / do we denounce it, and if so to whom? (and any number of variations on the same question).

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.

What happens to owners who carried out illegal works or extensions?

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.

We are thinking of installing an elevator in part of our complex that will only benefit part of the community. Is this possible, and who should pay?

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.

Previously, our complex has not allowed apartments to be used as holiday lets. Now, there is a move afoot by some owners to change this. Under the laws governing common ownership, do they not need the agreement all owners to make such a change.

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.

Children

At what age is a child able to use a swimming pool unaccompanied?

The President keeps telling my children off just for playing. They must be allowed to play, surely? Isn't the President harrassing us?

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.

Meetings

I disagree with the minutes of our last AGM and think they're wrong. No-one is prepared to do anything about this. What can I do?

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.

Our AGM meetings and minutes are only ever in Spanish. Is this the law?

How do I call an Emergency General Meeting?

Must notice be given of AGMs, and if so, how much? What happens if less than the required amount of notice is given?

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 …

How much notice must be given for an EGM?

Article 16.3 of the LPH gives the notice period of “at least 6 days” for an AGM, but for an EGM, says “con la que sea posible para que pueda llegar a conocimiento de todos los interesados”, i.e. with as much notice as necessary to inform anyone concerned. To an English mind, I can well imagine that that sentence would be interpreted as “with as much notice as necessary to allow everyone to make arrangements to be there”, but this is not what it means. The rules are predicated on the assumption that owners live in their properties, so it should be interpreted as “with as much notice as necessary to let everyone know it’s happening”. That could be as little notice as a day. The whole point of an EGM is that it is intended for extraordinary situations, including emergencies, so time is of the essence.

Is there any legal time limit that questions can be put forward to the agenda before an AGM?

I've been told that there's no such thing as 'Any Other Business' in an AGM. This is a normal part of meetings, surely what I've been told is incorrect?

Is there is a time limit after an AGM for the minutes to be signed off' and circulated?

What can we do about multiple owners who can outvote us every time?

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.

We are tenants and the owners want us to vote for them in the AGM but other owners have said we may not be allowed into the meeting. Can you tell me what our position is?

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.

The administrator and President will NOT put anything that we request on the agenda. Can they do this?

Is there a limit to the number of proxy votes a president votes with?

If you give a proxy to someone to vote on your behalf, do they have to vote in accordance with your wishes?

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. There is no legal requirement, however, even if there’s a perceived ethical responsibility.

Finances

What course of action can be taken when urgent work needs to be undertaken and there is no money in the community kitty?

Can someone be forced to pay a derrama for community amenities?

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.

I have to pay my derrama in two parts, both of which are expensive. Can’t I negotiate to pay it over longer? Will they class me as a debtor if I don’t pay as they say? I couldn’t attend the meeting where they decided this.

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.

Who establishes how much the community fees are and on what grounds?

How much can the President spend?

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.

What can owners do if after repeated requests over several years, to see the community accounts the requests are ignored?

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.

Do community accounts have to be audited?

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.

Can a president impose a monetary fine on a resident?

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.

What happens when accounts are rejected at an AGM? The committee says they will write to us with the new accounts but will we have to convene an EGM to seek approval of them when they have been re done. Some owners have suggested that in view of this dilemma and the accounts not being approved the community funds have to be frozen. In other words the committee cannot spend any more community money until the accounts are approved. Do you happen to know if this is correct.

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.

Community

Is it a legal requirement under the Horizontal Property Law to have a uniform model for design, colours, etc. in place on a community?

How do you get people to keep quiet and behave properly? Is this a duty that the President performs?

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.

Our president has made the internal rules himself without consulting the community. Should the community not have been consulted?

Our administrators refuse to do any work to supply TV for anyone who isn't Spanish. Can they do this?

Am I allowed access to communual areas such as electric meter rooms, store rooms and pool rooms? Also do I have the right to a key?

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.

Following heavy rain water has leaked from the terrace above into our apartment. Who is responsible for the repair of the leak and of the damaged caused - the owner above or the community?

Who is responsible for the maintenance of the roof.. there is no access. and it is not on the escritura?

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).

If there is a water leak from my property and I'm in the UK, can an official of the community enter my freehold without reference to me? Also can I seek payment from the community for expenses incurred in putting back to normal after repair works carried out in my absence?

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.

What should be in place, or be done, for disabled access to a community?

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.

What are the legal working hours for carrying out work on a complex?

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.

Our president won't let me see CCTV footage. Can he do this, or is it my right to view them?

67 Comments

Hi Janet,

At our recent AGM, a vote was taken to heat the pool. The meeting was held on second calling.
The motion was carried by 19 votes to 10 of people present at the meeting.
Our president is dead set against the heating of the pool, and is now saying that the motion wasn’t carried, because it needs 3/5 of total owners in favour, and not 3/5 of people present.
I have looked at the LHP and don’t think this is correct?
Article 16 section 4 does say 3/5 of owners, and section 7 says when a meeting is held on second calling, the votes are based on owners present.

If votes are based on total numbers of owners and not owners present at the meeting, surely this suggests that nothing is ever carried?

Sharon

13 February 2017

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I’m sorry Sharon but as I’ve said before, percentages questions need to be directed to qualified administators because they are too technically complex for me to advise. As far as I’m aware, however, in second call meetings (i.e. the vast majority of meetings), votes are carried by simple majority provided only that the half the cuota is present. This is the trouble with advising on such matters – even with exact numbers of attendees, it is impossible to know the actual cuota percentage that was present. It’s also impossible to know the numbers of proxy votes that the administrator might know about but we don’t, and there is the issue of whether it was itemised in the agenda too, because if it was not, then no vote can legally be taken anyway. I’m afraid you really will need to check the specific details of the situation with your administrators.

Janet

13 February 2017

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Thank you Janet. I know it is complicated.
66% of our owners were present or represented, so I’m reading it that it is 3/5 of those numbers,
I have emailed Rene to see if he can answer my question.
Thanks again,

Sharon

Sharon

13 February 2017

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Sharon I have some personal experience of this, I can’t remember the exact wording of the law of horizontal but basically you won the vote at the meeting 19-10 which is a majority. If 3/5s of the complex are needed to approve then the other owners should be written to and “informed of the decision” made at the meeting (I believe that is the actual text in ley de propiedad horizontal)…. then the owners who were not present have the right to vote against the decision ….. and the ones who don’t reply count n favor of the decision made at the meeting .

If you think about it logically it has to work that way, imagine if there’s 100 owners and only 10 ever turn up , they would never be able to make ANY decisions at all.

For example even majority decisions , 10 is not more than half of 100 so theoretically you’d have to wait for 41 more owners to back simple majority decisions , and even more for the 3/5 decisions.

Hope this helps

John Parkes

14 February 2017

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Hi, I have been a president in our village for 10 months now, and the AGM is due on the 18th of March. Can you please help with the following questions.
1. Can you please advise me of the voting procedure with respect to the president and committee.
2. One of our owners is asking the committee to consider certification of the accounts produced by the Administrator, I am sure I have read somewhere that the Administrator is fully qualified and that if any individual requires an audit then they have to gat a group of owners together to pay for same, what is correct.

Ralph Miles

17 February 2017

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Author

The procedure is that the election of the president is a required item on the annual general meeting’s agenda, and whoever wishes to stand for president does so and the community votes: the one with most votes is elected. The community approves accounts or not depending on what is presented to the general meeting. The accounts are produced by the administrator, who will either be a professional qualified administrator or an owner, who does not need to be qualified. There is no requirement for an audit, though a community could commission one if desired.

Janet

17 February 2017

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Hi, our administrator is well qualified, some of the community want an audit and some don’t how does that work?

Ralph Miles

17 February 2017

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Author

the community will have to vote in the general meeting on whether it accepts the accounts or not, or if the accounts should be externally audited.

Janet

17 February 2017

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A professional external audit may cost several thousand pounds – we had one a couple of years ago cost nearly €4k !

John1

18 February 2017

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and ultimately, the community’s accounts are drawn up by the administrator selected by the community, and then approved by the community itself. It’s hard to see why an external audit is required. If the administrator is not trusted, then for me it’s more prudent and productive to elect a different administrator rather than have the accounts audited. Administrators, like presidents, must be elected or re-elected each year.

Janet

18 February 2017

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Hi. I eecently viewed our comunity website and they have published a surveillance report from the pool attendant from last summer. The report is very damning and makes megative reference to individuals some are named others are identified by writing their house numbers. A lot of what is mentioned in the report is factually wrong and one sided. We were not informed of this report before it was published and there is reference to out family by house number and our behaviour when we were not even in spain at the alleged time. My question is should the website administrator have published this report without our consent or being given a chance to point out the incorrect facts? can the committee allow the attendant to publish such defaming material where he names people by first name house and nationality. Is there any law about what material can be posted about an individual on the website.

rose mcconville

19 February 2017

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This is a question that requires a qualified lawyer or administrator to answer, I’m afraid. More generally, however, this is something to put on the agenda of the next AGM, or even call an EGM about if others are affected and you can get 25% of the community to support your call for an emergency meeting.

Janet

19 February 2017

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Hi Janet, a very helpful and interesting site.
Not sure if you can help.
I am the outgoing president of a complex, after the meeting I asked the administrator to be able to view the proxy vote forms and to see the allocation of the voting for each item on the agenda this has been denied.
The meetings are waiting to be signed off which I said I will do once I had viewed the above, in LPH it states the voting should be included in the minutes but are not, this I have pointed out, all he has said it did not happen at the last meeting.
Have I any rights to see these items.
Kind regards
John

John

28 February 2017

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Author

I believe so, John, but I am not a qualified administrator so my best advice is to seek clarification from a different administrator.

Janet

28 February 2017

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My understanding , from a previous AGM argument ,is that the proxies should be available at AGM for anyone to inspect their validity and subsequently can be examined at Administrator !
Our Presiden/Administrator was caught out when he didn´t bring them to meeting and had to go and get them before AGM could start or relinquish them !

John1

28 February 2017

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Hi. I am the president of a building with 68 apartments. I have been functioning for almost one year. Unfortunately the previous administrators of 10+ years did little to ensure good maintenance of our building. As such, since the new administrator and I have been involved, several major issues have surfaced. The pool has had to be closed as it basically was emptying itself (for years the pool was simply being topped up on a daily basis rather than address why and where the water was going), the solarium area is unsafe (due to a disastrous resurfacing job ) A new lift is about to be installed, together with disabled ramps to the rest of the building. To be honest, there are too many issues to list them all. Most of which have serious health and safety concerns.

These items have been raised at both an AGM and EGM. I am losing sleep with worry that if anyone is hurt, I, as President, will be held responsible ! Is this the case? I have read through your previous responses and will be procuring my own public liability insurance.

When I was voted as President, I did not put myself forward for this position. In fact, I did not want it. However, I thought, in my naivety, that perhaps I could help. I was not aware of all of the issues, as they had not been itemised on any other Agenda.

Jane Ramsay

9 March 2017

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The administrator should be able to confirm that your community has the requisite public liability insurance, and it is good that you yourself will be getting your own too. If these are both in place, and you could show evidence if ever required that you have always acted legally and in good faith then it is hard to see how you could suffer any adverse consequences.

Janet

9 March 2017

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Hi Janet, our president and administrator want the community of owners to buy locales within out complex, i.e. Pool Bar, Restaurant etc. is this legal?

Noel Lennon

11 March 2017

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As with all “is it legal” questions the actual question can be rather different. Can a comunidad de propietarios own something? Yes. Is it a legal body recognized for land registry purposes? Not necessarily. There are instances where a land registry has refused to enter the ownership (after the President of the community signed on the community’s behalf to buy a unit within the complex) on the grounds that the comunidad was not a “personalidad jurídica”. And yet a notary had signed off an escritura for the purchase. I would advise your community to seek qualified legal advice in addition to whatever the president and administrator are suggesting.

Janet

11 March 2017

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Hi Janet
Can you confirm that spanish law prohibits commercial activities on a residential complex?
Washing machines and tumble driers are going allday and into the night in one appartment whoose owner runs a care home.
Other owners are concerned
Regards
Charles

Charles

11 March 2017

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No-one may carry out commercial activities from a residential unit. What you’re describing is, in effect, “nuisance”, so you should complain to the president, and then in turn administrator, policia local, tax office, Guardia Civil … depending on which stage you get listened to.

When you say that other owners are concerned too, however, then it becomes something the community should instruct the administrator to take action over.

Janet

11 March 2017

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Hi Janet our water bills includes and percentage of the community used which is on top of our community fees.Can I bill the community for this or ask for a reduced in community fee ?

Sam

11 March 2017

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Author

Your community fee will be based on your percentage ownership, and the actual amount will have been agreed by the community when it approved the overall budget. That will include any individual owners’ contributions to communal water usage. If you disagree with this system, the appropriate way forward is for you to arrange to have it discussed at the next general meeting by asking the administrator to place the matter on the agenda.

Janet

11 March 2017

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Janet
Could you please clear up some confusion I have on proxy votes. I have been informed that a proxy form must be signed by the owner and voter be legal
Also that the NIE is not valid on a proxy form as it is not a valid form of Id ( an NIE only means you are registered to pay taxes in Spain it does not imply fiscal residency) although DNI is valid for Spanish citizens a passport would be required by non Spanish.

William Richmond

12 March 2017

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Author

Different administrators run different systems. Some will accept a proxy given by a simple email, while others demand a specific form that they produce themselves to be filled out, signed and returned with varying types of supporting documentation (copy of passport, NIE) etc. All that is required is that administrator accepts the owner’s grant of proxy – and so the answer to what is required to grant a proxy vote is that it is whatever the administrator requires. This means that the scope for confusion is infinite, with any number of people having different experiences … and then blaming “Spain”.

In terms of ID, NIEs are indeed not a form of ID: nothing is a form of ID unless it has a photo on it. Even then some banks won’t accept a Spanish driving licence, despite it being proof of complete acceptance of identity that incorporates a photo. Ultimately, the “requirement” is whatever is demanded by any particular system, or the person administering it.

A DNI is a Spanish ID card – a formal identification document. For the British, who don’t have an ID card system, the equivalent is a passport. Please have a look HERE – first question on the page.

Finally, a NIE doesn’t mean you’re registered to pay taxes – it’s just a certificate issued by the police to grant you a trackable number which is required for any official transaction.

Janet

12 March 2017

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Hi Janet
With regards to Charles post regarding commercial activities on a residential complex. We have a similar problems with Washing machines running all day the place looks like a Chinese laundry owners are complaining and we have been told these people are not paying taxes on the business they are running to make matter worse. My question is can you advise on how we report them to the tax authority I.e the address and can it be done anonymously for fear of retribution against the owners who make the complaint
John
The owners are
Regards

John

13 March 2017

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Author

Denuncias cannot be made anonymously because they are an official public document which requires the initiator’s name on it, but the main tax office in south Tenerife is opposite the Green Hospital in Playa de las Américas.

Janet

13 March 2017

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Hi Janet thanks for your assistance can you give us the postal address for the tax offices as a number of owners now want to write to tax office with their complaint.
John

John

13 March 2017

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Author

HERE is the Government’s website showing the different tax offices.

Janet

13 March 2017

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We had a similar problem of commercial activity a few years ago. Neighbours complaing of what sounded like washing machines running all night and large deliveries at all times of the day.

Turns out the deliveries were rice and soya beans and the noise was cooking them in washing machines ???

I was vice president at the time and we had to initially get the administrators to write to them officially instructing them to cease and then get a court order for them to cease on penalty of the judge placing an embargo on the apartment and evicting them.

Peter Johnson

15 March 2017

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I had given my proxy to someone else but was then able to attend the meeting, I was told that I could not speak at the meeting and that if I did all proxy votes would be disallowed. Is this true?

Noel Lennon

15 March 2017

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Author

That doesn’t sound remotely true to me. Could you have misunderstood that it would be your own proxy vote that would be disallowed if you were present in person.

Janet

15 March 2017

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Thanks for your reply Janet. My proxy was allowed, even though I was present, as I did not speak. Is there a rule on attending a meeting even though you have given your proxy to someone else?

Noel Lennon

16 March 2017

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no, the rule is one owner one representation and one vote.

Janet

16 March 2017

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Dear Janet,
Our President called an Egm and the main item was permission for a private pool in a garden when objections were raised by the neighbours the administrator said, as a precedent had already been set we could not refuse permission and therefore could not vote.

michael mcgrath

23 March 2017

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Your administrator will almost certainly be right.

Janet

23 March 2017

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Hi Janet
I have just came back from AGM were I had request to change the rules on Sunbeds in the complex. I currently have a 2 bedroom apt. Yet all apt.s are allocated only 2 Sunbeds. 1 bedroom apt are allowed the same . Even thou 2 bedrooms pay 500 € plus per year . I feel it’s very unfair. I raised it again but was told I did this in 2015 so rules states it can’t be voted on again till 2020. You must wait 5 years. Surly. This can not be true. If everyone is in titled to the same benefits then why are we all not all paying the same. It cost a fortune if my grandkids come over.

merged second question:
I live on a residential complex and they charge visitors and residents for Sunbeds is this legal. As they run it as a business.

Lynn Appleby

6 May 2017

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Author

The issue of sunbeds is an entirely internal one for the community to agree, and what is “fair” for any given community is for that community to decide and vote on. As to the five year ruling, however, ask them to show you where it says that.

With regard to your second question, if the community has decided there is to be a charge for sunbeds then yes it’s legal.

Janet

6 May 2017

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I am being asked ,on numerous occasions, by a particular owner for the list of debtors. In view of your answer above (quoted below) it seems that he is only entitled to this at the time of the AGM?
As President can i assume ,as I have a duty to collect the community fees, that I am entitled to copies of the debtor list?

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.

sally clements

11 May 2017

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Author

yes, as president, of course you are! Speak to your administrator.

Janet

11 May 2017

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Hi Janet,
At our AGM a vote was cast with regards to the height of our wall ,1.85m, which is higher than allowed in the statutes (ballustrades are allowed) This was not on the agenda, however under AOB it did say “Community Rules” We did not know the height of the wall was to be discussed, as we are holiday home owners we did not attend the AGM. Ther were 6 owners present 24% of the urbanisation, 5 voted against changing the rule, our immediate neighbour voted for. Do you think we have a right to challenge this as this as this directly affected us and we knew nothing about the discussion re the wall that took place?
Regards
Guilia

Giulia C

13 July 2017

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As I say above, there is no Any Other Business in Spanish AGMs, just Questions and Answers. And in this Q&A section at the end, no resolutions or votes can be proposed or passed. That is not a legal vote in my opinion, and so you need to take it up with your administrators, or with other administrators, or a lawyer.

Janet

13 July 2017

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Thanks for that Janet, really appreciate it,
Giulia

Giulia C

13 July 2017

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Hi Janet, as a complex, we suffer badly (50%) with debtor arrears. As we all know they use elec/water without payment or sanction.
With the introduction of the new, & brill, smart meters due to be completed throughout Spain, will this mean that electric suppliers can identify illegal connections and disconnect them?
Thanks for all your help.
Kind regards Carol

Carol Woodhead

20 July 2017

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Author

I’m sorry but I don’t know. Your administrators will be best placed to answer this question.

Janet

20 July 2017

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thanks for trying Janet, very much appreciated.

Carol Woodhead

20 July 2017

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Have you ever heard that Horizontal Property law limits the number of family or guests that may be present in the communal pool area at any one time? I have read the translated version of Law 8/1999 reforming law 49/1960 including modifications up to 8/2013 and can find no reference to this. Could it be a regional variation in Tenerife?

BillyD

28 July 2017

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no, no limitation in the law, nor a regional variation. What is in the law though is that there must not be a disturbance, nor communal areas taken over for private parties, so if that is happening then the community has the right to say “stop, too many of you”.

Janet

28 July 2017

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Hi, Great website. We have illegal renters on our complex. We have now been informed by our president that our community insurance will not cover claims from ‘rent paying guests’ if they suffer loss or injury whilst in the communal areas and that individual owners will be liable. If a ‘rent paying guest’ is able to prove the community is negligent can that guest sue the community for damages and are we, as owners, jointly liable?

Gadz

29 July 2017

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Author

I’ve covered the insurance situation HERE (see Holidaymakers section), and yes, despite all the arguments that “it’ll be fine” or “they’ll still pay up”, confirmed legal opinion is that insurance companies may well refuse to pay out on claims for injury incurred while in an illegal let – even if they have previously said there will be no problem. As to personal liabilities of owners, however, it would take legal cases to establish whether any subsequent claim would fall on the comunidad or the individual owner.

Janet

29 July 2017

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Thanks, much appreciated

Gadz

31 July 2017

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Hi Janet.
Sorry if this has been covered. Can a president be elected in his/her absence from the AGM through holiday or illness etc.

Charles

12 August 2017

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First question in the section above on Officials. A president can be elected even if opposed to being elected. Also question 4 in that section shows that a president doesn’t have to live in Tenerife. There’s absolutely no reason that a president cannot be elected simply because s/he’s not around at the time of the AGM.

Janet

12 August 2017

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Our president refuses time and time again for proposals to be included in the agenda of an AGM. Although it is clearly stated in the Horizontal Property Laws that the President must include any request provided it is clearly stated. Our president maintains that he and he alone draws up the agenda and decides if the proposal is pertinent. Can you let me know if this is in fact the case

Ian Sherdley

21 August 2017

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Author

As you say, the LPH is quite clear. Please see the last question in the Officials section above, and the Meetings section for the question”The administrator and President will NOT put anything that we request on the agenda. Can they do this?”.

Janet

21 August 2017

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Thanks Janet. I have read the comment you relate to. However I have been told that somewhere in the small print the President is entitled to decide if the proposal is relevant. I have only read a translated version of the Act, wondered where this small print if any is in the official Spanish version. If the President can decide what he personal wants on the agenda, it makes a nonsense of the Act. For example if we want to propose, that we go out to tender for our gardening contract, the President can decide that in his opinion this is not relevant as he is happy with the existing contractors even though we have cheaper quotations.

Ian Sherdley

21 August 2017

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Author

Small print in legislation regarding communities is a matter for a lawyer or a qualified administrator to confirm, but I don’t believe he’s correct. I can envisage some situations, however, where a president feels harrassed by repeated requests on a settled matter, and might feel (and be) justified in refusing to add an issue to an agenda. Specifically, though, when it comes to financial decisions affecting the community then the item must go on the agenda.

Janet

21 August 2017

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Hi Janet wonder if you can help we live on a residential complex in the south. The owners feel that our administrator does not do enough to assist in dealing with problems which arrive. Can you advise on what should be expected from an administrator I.e his roll, responsibilities and duties.
Thank you for your help
John

John

22 August 2017

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Author

Please see the question “What do presidents and administrators actually do?” under the Official section above.

Janet

22 August 2017

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I live on a complex in the canaries, we have a lot of Spanish owners some debtors some not. My question is how did that community manage to get a 100% acceptance on the issue of debtors being denied access to facilities on their complex, I understand that any debtor can legally challenge this community rule and would win their case. I have been told that community rules do not supercede Spanish Law. Were all the owners there non Spanish ? Is that how this ruling was passed.

Sue Robb

23 August 2017

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Author

Please see the question “What can a community do about perpetual debtors?” in the Debtors section above.

Janet

23 August 2017

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Hi Janet, i hope you can help, we have a privately owned pool bar in our complex, nothing at all to do with the complex, it just happens to be located there,
The committee have agreed to allow the bar 4 people to use the pool in the summer & 8 in the winter, this is causing problems with the bar owner as he invites all an sundry to use the pool when using his bar. Do we have to allow him use of the pool for his customers, he pays community fees, he is not resident in the complex.
Kind regards.
Frances.

Frances

28 August 2017

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Author

The bar will be something to do with the community if it’s part of communal space, and as you say, the bar owner pays community fees. Any owner is a member of their community and does not need to be resident to enjoy the facilities of the community in which they own. What the actual rules are for his customers, however, is something your administrator will need to clarify because they will have access to all information about internal rules, community owners and their quota, and more particularly, the community’s Statutes.

Janet

29 August 2017

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I have been President of our community for eighteen years purely for the fact that we have only three residents out of twenty eight properties, two of whom are elderly ladies, and that leaves. So I get voted on every year. What is the position on Presidents getting paid some kind of financial renumeration , ie community see paid or partly paid. People think that it`s normal, but I say it`s the exception rather than the rule. I can`t find anything in The Law of Horizontal Properties that states that the President can be paid, John

John McCann

1 September 2017

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Author

Presidents aren’t paid for being president.

Janet

1 September 2017

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Hello Janet, is it possible please to offer some advice concerning an ongoing situation which is occurring on our complex.

There has been a long running problem with a certain owners cats roaming the complex and doing their business outside various properties on 5 floors.

Complaints have been made to the owner concerned who in turn has responded with a could not care less attitude, but now to make matters worse she is now feeding a stray cat on the complex which has just had a litter of kittens, which she will no doubt feed also.

The owner in question in her wisdom has decided to feed the stray cat outside other owners properties…never outside her own! Is there anything the can be done to deal with this problem.
Just to add that the president and various owners have previously asked the person concerned not to feed stray cats, but sadly the polite requests have been treated with contemp.

Regards,
Peter.

Peter J Roche

20 September 2017

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Author

Please could you see the answer to the very first question above? If you have an owner refusing all demands to stop then the community needs to consult the administrator, or if necessary its lawyer, what more can be done.

Janet

20 September 2017

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