Practice

Exemptions

 

A particular unit need not be subject to an assessment levy.

This must be specifically permitted by the Articles, the title or even by unanimous resolution of the OC.

The Supreme Court held in several decisions that the Articles may amend the title with regard allocations (Judgement 02-02-1991) as well as exempts contribution for certain expenses (Judgement 06-07-1991). If in the title, or in the Articles, the nature of those expenses is not clearly defined, the interpretation of this rule must be restrictive; distinguishing between ordinary an extraordinary expense. The latters might not be included in the exemptions because they add value to the whole building benefiting all the commonholders. Exemption to contribute to the maintenance of the lift does not mean exoneration where it has to be replaced as per the CA ruling in Alava 21-10-2004

Most of judicial decisions rule that exemptions granted to premises to contribute to the general expenses of the commonhold do not include façade repairs. CA ruling in Sta Cruz de Tenerife 14-06-2004 and CA ruling in Valencia 16-12-2004

The CA ruling in Corunna 07-04-2006 held that it is valid and legal to provide a clause in the Articles in which some units are exempted for repairs as well as for the maintenance.

Where the exemption to contribute to certain expenses has been agreed by the OC and the resolution is not entered in the Land Registry as an alteration of the title or the Articles, prospective owners shall not be bound by that resolution and may contest it because it requires the unanimous consent. CA ruling in Burgos 20-05-2002

Maturity date

 

The OC or the Articles may provide a special date in which the obligation is considered due. In this case, it is not mandatory to serve a default notice to the debtor and since said date he will be deemed as defaulter. Where nothing is regulated it is understood that the default shall begin when the period of payment expires, for instance, if that period is monthly at the end of the month.

Several and different debts

 

Where an owner is in default for several debts not only ordinary but extraordinary he may impute his payments freely notwithstanding of his accountability of all of them..

Expenses’ features

 

Firstly, the expenses should be for the maintenance or upkeep including whether they are either ordinary or extraordinary. Secondly, the expenses should not be ‘allocated individually’ which means that they benefit to the commonhold as a whole.)

Extra charges

Statutorily, defaulting owners are due to pay interests, besides this, it is lawful to establish an extra-charge for late payments. CA ruling in Alicante 31-05-1999 and CA ruling in Tenerife 24-06-2000. Case law admits that the Articles may provide surcharge in case of arrears or even that the OC may adopt a resolution by unanimous agreement to establish an extra charge only for the outstanding arrears subsequent to the resolution. CA ruling in Huesca 18-06-90