For those who live or work in a property under the horizontal property regime, living alongside the neighbours can prove complicated. However, knowing the rights and obligations, as well as the rules applicable to that coexistence, will make life much easier.
For this reason, if you wish to divide up your property under the horizontal property regime and want to set clear rules from the outset, or even if you already belong to an owners’ association and wish to settle a dispute, do not hesitate to contact us. At BBMabogados we have the most experienced lawyers in horizontal property in Santander. And if you have a problem with squatters or a tenant who does not pay, we can also help you recover your home.
What is horizontal property in Santander?
It is a legal regime or institution that seeks to regulate the special form of ownership existing over a property divided into flats or premises. In such a property, an exclusive right of ownership over the flats or premises coexists with a right of joint ownership over its common elements. Put another way, it is the regime that governs the division of a property, as well as the organisation and relationship between the co-owners of the common assets and their upkeep.
In this way, we find that the assets over which an exclusive right of ownership is exercised are the homes, premises, parking spaces, and so on. Meanwhile, examples of common assets —and therefore those over which joint ownership is exercised— are the land, foundations, pillars, beams, façades, staircases, corridors, meters, lifts, among many others on a long list.
Thus, together with the right of ownership over a flat comes an inherent percentage of ownership over the common elements. This percentage will determine participation in the burdens and benefits of the community. This is exactly as set out in Article 396 of the Civil Code and developed by the Horizontal Property Act.
What is the owners’ association?
Now that we know this regime entails living alongside other owners and co-owners, the next step is to understand how this relationship works. This brings us to the concept of the owners’ association, which is simply the body of owners of the separate units (flats and premises) of the building.
The constitutive deed as a fundamental element
This document describes the property as a whole, in accordance with mortgage legislation. It also details each of the flats and premises, with their respective number, dimensions, boundaries, location and any annexes. Through this instrument, the co-owners’ share of participation is fixed, generally determined by the sole owner before the sale.
At this point it is worth making clear that the share of participation is the measure that determines the contribution to the burdens and benefits of the owners’ association, which is in no way altered by improvements or damage occurring in each flat or premises.
Likewise, the constitutive deed may include the community’s statutes, that is, the rules governing the use of the property, expenses, administration and governance, upkeep and repairs, among other matters inherent to living together.
Rights and obligations of the owners in the owners’ association
Now then, like all life in society, the owners’ association must be governed by a catalogue of rights and obligations that allow for healthy coexistence.
USE AND ENJOYMENT
The owner of a flat or premises has the right to use it in accordance with the purpose given to it. Likewise, they enjoy the right to make the most of the benefits it produces and to make use of those common elements for the proper use and enjoyment of the flat or premises.
Likewise, this entails the prohibition of the abuse of rights, respect for the community’s easements and general installations, seeking authorisation to carry out works, avoiding at all times damage to the common elements, among other limitations specified in the law or in the community’s internal rules.
DISPOSAL OF THE FLAT OR PREMISES
The owner may dispose of (sell, transfer, donate, etc.) their flat or premises freely and without having to give any notice. That said, despite the disposal, the property will retain the inherent share of the jointly owned elements, as provided by the Horizontal Property Act.
LEGAL ACTIONS
To defend their rights and interests relating to exclusive ownership, or in situations affecting the community’s rights, any owner may bring legal actions.
GENERAL EXPENSES
The owners must contribute, according to their share of participation established in the constitutive deed, to the general expenses that allow the upkeep of the property or its services.
Permitted and prohibited activities
Likewise, the law sets out a series of permitted activities and others that are prohibited within the community. Briefly, the following may be mentioned:
The owner may modify the installations or services of their flat or premises, provided this does not undermine the safety of the building.
By contrast, the owner must adhere to the prohibitions set out in the statutes. Along these lines, they may not carry out activities that cause damage or that are disruptive, unhealthy, dangerous or unlawful.
Should any of this prohibited conduct occur, there is a procedure to be pursued through the Chairperson of the meeting to have the practice cease, failing which legal proceedings may be initiated, that is, an action for cessation through ordinary proceedings.
Like this action, many others are available to address the various scenarios that may arise in the course of relationships within a community. For this reason it is important to have expert lawyers to advise you, especially if, as an owner or member of an owners’ association, you find your rights infringed.
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