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Horizontal Property Law

Horizontal Property Law

Postby Chippyguy » Thu Feb 13, 2020 8:08 pm

Hi,
We are looking at a property that falls under the Horizontal Property Law.

It is a detached property of just under 500sqm and apparently is part of 18 properties on a parcela.
There are no communal areas or shared land. all 18 properties have their own plot.
Apparently this is quite common on Quesada for the builder to build more properties.

This is fine, however there has not been a community of Owners formed, so there is no way to approve things like, Underbuilds/extensions etc, all of which requires community approval.

Has anyone got any experience of this, come up against it or found a solution?

Thanks
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Re: Horizontal Property Law

Postby Beesknees » Thu Feb 13, 2020 10:21 pm

Don’t know if this will help section 24 of HPL


Section 24 Private real estate developments

(1) The special system of ownership established in section 396 of the Civil Code shall apply to private developments that meet the following requirements: a. Being formed by two or more detached buildings or independent plots between them used mainly as dwellings or premises. b. Owners of such buildings or of the units in which they are divided participate in an indivisible co-ownership of other immovable elements, roads, facilities or services.

(2) The private developments referred to in the preceding subsection may:

a. Constitute one commonhold through any of the procedures provided for in section 5 (2).
In this case they shall be subject to the provisions of this Act, which shall be entirely applicable to them.

b. Create an association of commonholds. For this purpose, the commonhold community statement must be executed by the sole owner of the development or by all the presidents of the component commonholds, duly authorised by majority vote of their respective Owners’ Committee .
The commonhold community statement shall include the description of the whole development and of the common parts, roads, installations and facilities. It shall also contain the percentage established for each one of the component commonholds. These shall be jointly liable for the general expenses of the association. The commonhold community statement and the articles of the association may be registered at the Land Registry.

(3) The aforementioned association shall enjoy the same legal status as commonholds and shall be governed under the provisions of this Act with the following specifications:

a. The Owners’ Committee shall be formed, unless otherwise agreed, by the president of each component commonhold in representation of its individual unit owners.

b. The adoption of resolutions for which the law prescribes qualified majorities shall require, in turn, a prior appropriate majority at the Owners’ Committee of each one of the commonholds belonging to the association.

c. Unless the Owners’ Committee decides otherwise, the provisions of section 9 concerning a reserve fund shall not apply to the association.
Duties of governing bodies of the association shall only cover common elements, roads, installations and facilities or services. Their decisions shall in no event diminish the powers of the governing bodies of the component commonholds.

4. Provisions of this Act, with the same specifications indicated in the preceding paragraph, shall apply supplementarily to covenants adopted by and between owners in the case of those developments that do not adopt any of the legal forms provided in subsection 2 of this section.


24.1 Special commonholds

This section tries to cover a legal loophole for those macro-estates in which there are sub-commonholds integrated in a master community.

One may wish to create a master community in the following situation.
Assume there are four blocks of flats around a garden. Each block of flats has its own unique maintenance and covenant issues, but all blocks want to share the common garden. Each block could be a separate commonhold with maintenance obligations, voting and other rights pertaining just to that block. Only those in the affected block would get to vote on issues relating to that block. Each sub-commonhold has its own service fees, its Owners’ Committee, its president and its own common elements but it is also belongs to a master community with general common elements. Each sub-commonhold has to contribute to the expense of the master community in accordance with the allocation established for this purpose in the title, thus, there are two types of allocations some in respect of each unit to its sub-commonhold; and others of each commonhold in respect of the master community.
The master community only has authority over general matters and general common elements not over affaires of each sub-commonhold.CA ruling in Lleida 14-12-2007 held that a sub-commonhold is not entitled to claim for withdraw of an air conditioning unit placed in a common general area

24.2 Scope

In order to find out which commonholds are under the scope of this section, it is necessary to consider section 2 and 3 of the Act.
Section 2 provides that the Act shall be applied to:

a. Registered commonholds
b. Unregistered commonholds
c. Private real estate developments

Thus, a development fulfilling these features reflected in this section may be constituted as a standard commonhold or as a private real estate development (master community). Considering the jurisprudence we find examples of types of buildings subject to this section.
• Developments formed by blocks of flats, detached houses and plots for the building of future homes.CA ruling in Seville 15-03-2006
• Three semi-detached houses with only the foundations as common element. CA Asturias 19-11-2001
• Four blocks of flats joined with only a communal garage as common element. CA Cadiz 11-04-2003 and 21-03-2003
• Industrial estates with roads and drainage as common elements. CA ruling in Zaragoza 01-07-2002

24.3 Private real estate developments without title

Courts have been recognizing its inclusion in section 24 provided that there is a constitutive will (but where it has not been formally expressed). SC 07-04-2003 CA ruling in Alicante 12-06-2008
The CA ruling in Cadiz 21-03-2003 held that the existence of a book of minutes was sufficient in order to acknowledge an intention.
Other courts do not consider this requirement as indispensable, holding that it is enough where there are common elements. CA ruling in Malaga 30-05-2005 and CA ruling in Madrid 27-04-2007

Other assumptions considered by courts as ‘de facto’ commonholds would be:

• Where the registered deed of purchase establishes duties in respect of common elements. CA ruling in Granada 22-12-2004

• Holding meetings or paying service fees. CA ruling in Málaga 30-05-2005

24.3.1 Allocation of contribution

As the Act does not give any provision, courts are holding that the area of each unit is not an essential criterion to determine allocations. CA ruling in Zaragoza 09-10-2003 and CA ruling in Córdoba 28-03-2005

24.3.2 Majorities regime

As was stated by the CA ruling in Madrid 19-01-2004 the general regime of majorities set forth in the Act shall be applied. However, it is possible to covenant in the Articles, different majorities than those established in the Act. For instance, it is permitted to change the basis for contributions to the expenses of the commonholds by a non-unanimous resolution. CA ruling in Santa Cruz de Tenerife 19-12-2008
As a general rule the Act shall be applicable to those matters not contained in this section 24.

24.4 Governing bodies

The main feature of these private developments provided in section 24 is that they could be optionally formed by two or more commonholds gathered through the master community.

24.4.1 President

The master community’s president is appointed by the members of the master community’s committee among the presidents of each commonholds.

24.4.2 Master community’s committee

It is formed by the presidents of each commonhold , since each one of those commonholds have their own Owners’ Committee. They represent the interests of their commonholds.

24.5 Covenants between owners

Subsection (4) permits covenants between owners which create commonholds with particular and specific rules. In respect of assessments of quotas it is usual to fix equal allocations in order to contribute to the common expenses regardless of the area of each unit . CA ruling in Cádiz 04-03-2002.
It is also valid to allocate two quotas; one for the expense of the commonhold and other for the contributions to the master community. CA ruling in Valencia 30-04-2002
In spite of the freedom granted by this subsection there are some limitations established in section 13 - 18 of the Act, which are considered compulsory and are not affected by the wishes of individuals.

24.6 Common elements of the master community and of the commonholds

The title determines which common elements are allocated to the master community and which ones belong to each sub-commonhold. Where there is:

i. no provision in the title
ii. no resolution passed for this purpose
iii. no prior typical commonhold practice;

Every common element in the development will be considered as belonging to those of the master community. CA ruling in Cádiz 23-12-2005

This section 24 is virtually silent on the issue of whether developments are bound by section 7 and 12 of the Act which deal with alteration of units and common parts respectively.
Even though courts are becoming more flexible because of the special features of these developments, in principle, limits on the freedom of commonholders to alter units and others affecting common elements shall be applied. CA ruling in Alicante 04-05-2005

24.7 Alteration of units

Section 7 of the Act obliges commonholders to simply notify ‘the commonhold representative’ of any alteration of their units provided that such work not diminish or alter the safety of the building, its general structure, its external image or configuration, or prejudice the rights of another proprietor otherwise the commonholder would need to apply for permission from the Owners’ Committee.
The rules above are also applied in developments regulated by section 24 . CA ruling in Málaga 14-06-2002 and CA ruling in Alicante 04-05-2005

Even though facades in developments formed by villas are private elements (CA ruling in Pontevedra 16-01-2008) alterations of them are not allowed in pursuance of section 7 which ban them if they alter its ‘external image’. CA ruling in Baleares 17-12-2007 Even where the impact is minimum

24.8 Notice of meetings

Even in case of unregistered developments, notice of meetings must comply with provisions prescribed in section 16 of the Act. CA ruling in Zaragoza 01-07-2002

24.9 Debt recovery

Section 21 of the Act establishes a special procedure in order to recover unpaid service charges from commonholders. This is fully applicable to developments regulated in this section 24
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Re: Horizontal Property Law

Postby anthomo16 » Fri Feb 14, 2020 8:31 am

says it nicely , just make sure you have your first occupation licence. as this makes it easier to sell on if an when you want to.
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Re: Horizontal Property Law

Postby Ron Hill » Fri Feb 14, 2020 8:53 am

Things like under builds etc will need council approval anyway. However, this may be easier to get if there is a community of owners in place. But be careful what you wish for as communities of owners can have their own problems
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Re: Horizontal Property Law

Postby Bee » Fri Feb 14, 2020 12:08 pm

In our Urb we have several phases of apartments and a lot of private villas. Each of the apartment phases has a community and then there is what is called a Mancommunidad where each of the apartment phases sends a rep to the Mancommunidad meeting once a year. Each of the private villas is a member of the Mancommunidad. In all the time I have been receiving minutes from these Mancommunidad meetings I have never seen any of the private villas ask for permission to do any work on their properties. So my point is despite being part of a Mancommunidad they don't appear to be required to have permission from the community just the ordinary planning permission from the Town Hall. I have seen notices posted on their properties from time-to-time that they intend doing works. I presume you can then object to the planning if it displeases you.

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Re: Horizontal Property Law

Postby Ron Hill » Fri Feb 14, 2020 12:35 pm

Bee wrote:In our Urb we have several phases of apartments and a lot of private villas. Each of the apartment phases has a community and then there is what is called a Mancommunidad where each of the apartment phases sends a rep to the Mancommunidad meeting once a year. Each of the private villas is a member of the Mancommunidad. In all the time I have been receiving minutes from these Mancommunidad meetings I have never seen any of the private villas ask for permission to do any work on their properties. So my point is despite being part of a Mancommunidad they don't appear to be required to have permission from the community just the ordinary planning permission from the Town Hall. I have seen notices posted on their properties from time-to-time that they intend doing works. I presume you can then object to the planning if it displeases you.

Bee


In our community works have to be agreed bu the community but as it only meets once a year permission is granted automatically by the community on condition that all statutory permissions building warrants etc are in order
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