Section 10 Carrying out repairs by the commonhold

(1)  The following actions shall be compulsory and shall not require prior resolution of the Owners’ Committee , whether or not they entail amendment of the title or of the Articles when they are imposed by Public Administration bodies or demanded by unit Owners

 

a) Works or actions as may be necessary for the adequate maintenance and fulfillment of the duty of upkeep of the building and its common services and facilities, including, in any case, those needed to satisfy the basic requirements of safety, habitability and universal accessibility, as well as conditions regarding appropriate appearance and any other arising from the imposition by the Public Administration of the legal duty of conservation.

 

b) Works or actions as may be necessary to ensure reasonable adjustments regarding universal accessibility and, in any case, those required at the request of owners of units where disabled people or over the age of 70 are living, working or providing altruistic or voluntary services, in order to allow appropriate use of common elements adapted to their disability, as well as the installation of ramps, lift or other mechanical or electronic devices favoring their orientation or communication with the outside provided the cost of such work charged annually, after deducting any public aid or subsidy, does not exceed the ordinary monthly common expenses for a twelve-month period. The fact that the cost in excess of the aforementioned monthly expenses is assumed by those who requested the works does not suppress the compulsory nature of such works.

 

c) The occupation of common elements in the building or private real estate development during the duration of the works referred to in the. preceding paragraphs.

 

d) The construction of new floors and an other alteration to the structure or the supporting walls of the building or common elements, as well as the setting up of a real estate development, as provided by subsection 17(4) of the consolidated text of the Land Act approved by Royal Legislative Decree 2/2008, of 20th June, which may be required as a result of the inclusion of the building within the scope of action of urban rehabilitation, regeneration or renovation.

 

e) Actions for the material division of units and their appurtenances to form other, smaller, independent units, their enlargement through aggregation of adjoining units in the same building, or reduction thereof through separation of some of their constituent parts, carried out by will and at the initiative of their owners, where such actions are possible as a result of the inclusion of the building within the scope of action of urban rehabilitation, regeneration or renovation.

 

(2) Taking into account the necessary or compulsory nature of the works or actions referred to under (a) to (d) of the preceding subsection, the following shall apply:

 

a) The cost of the relevant works shall be borne by the unit owners of the relevant community or group of communities, and the resolution of the Owners’ Committee shall be limited to the apportionment of the relevant levy and the determination of the payment terms thereof.

 

b) Unit owners exercising opposition to or causing delay of the execution of orders decreed by the appropriate authority shall be held accountable individually and be subject to administrative sanctions.

 

c) The obligation to satisfy expenses arising from the works stated above shall be attached to the unit in the same terms and conditions as those established in section 9 for general expenses.

 

(3). In any case, the following shall require administrative permission:

 

a) The constitution or modification of the real estate development referred to in section 17.6 of the consolidated text of the Land Act approved by Royal Legislative Decree 2/2008, of 20th June, in the terms provided for therein.

 

b) Where so requested, subject to prior approval by three fifths of the total number of owners representing in turn three fifths of the whole allocations , the material division of individual units and their appurtenances to form other, smaller, independent units; the enlargement of their area through aggregation of adjoining units in the same building, or reduction thereof through separation of some of their constituent parts; the construction of new floor-sand any other alteration to the structure or the supporting walls or pillars of the building or common elements, including the enclosure of balconies and the modification of exterior walls or roofs to improve energy efficiency, or of common elements, where the requirements referred to in subsection 17.6 of the consolidated text of the Land Act approved by Royal Legislative Decree 2/2008, of 20th June.

 

Subsection (1) is contradictory with section 5 and 17 of the Act. It says that it is not necessary the agreement of the OC even if there is an amendment of the title or the Articles. The obligatory nature of the works demanded by unit owners stated at the end of this subsection is modulated by the rules laid down in subsections (2) (3)

 

10.1 Obligatory nature 

 

It is an actual legal duty as was stated by the CA ruling in Asturias 05-03-2003 and the commonhold may not allege that they did not reach the majorities required in section 17 in order to avoid responsibilities.

As a general rule, where a statute provides for the performance by certain persons (OC) of a particular duty (maintenance), and someone (any commonholder) belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, prima facie an action by the person (commonholder) so injured will lie against the person (OC) who has failed to perform the duty.

The Act imposes a duty on the OC in favour of each and every commonholder.

 

10.1.1 Necessary works

 

It is clear that the community is obliged to carry out the works necessary for the maintenance of the commonhold, those needed to satisfy the basic requirements of safety, habitability, universal accessibility imposed by the authorities. It must be recalled that if these works are ordered by any public body it is not necessary the agreement of the OC but if these works are demanded by any owner they must be subjected to the OC seeking an agreement.

 

10.1.1.1 Habitability

 

It must be mentioned section 3 (1) (c) of the Building Act 38/1999 which defines what should be meant by habitability

Section (3) (1) ‘In order to ensure people safety, contentment of society and environment protection housing must be planned, built and kept with these requirements: 

 

c) Regarding habitability

 

1. Hygiene, health and environment protection in such a way that acceptable conditions of healthiness and imperviousness are met in the interior of the building and that housing does not have to deteriorate environment in its adjoining surroundings ensuring an appropriate waste management.

 

2. Noise protection in such a way that perceived noise does not jeopardize people health and allow them to carry out their activities in a satisfactory way

 

3. Save energy and thermal insulation in such a way that achieve an efficient use of energy needed for a suitable use of the building.

 

10.1.1.2 Safety

 

Section 3 (1) (b) of the mentioned Act provides an explanation about requirements related to safety

 

b) Regarding safety

 

1. Structural safety in such a way that avoids any harm on the building or part of it, damages caused by or which affect foundations, supports, beams, slabs, bearing walls, or others structural element which directly compromise the mechanical resistance of the building and its stability.

 

2. Safety in case of fire in such a way that the occupiers may evacuate the building in safe conditions and the fire can be limited inside the building or adjacent estates enabling the proper action of the fire fighting services and rescue.

 

3. Security in its use in such a way that the usual usage of the building does not mean risk of accident for people.

 

In general works deemed as fundamental to ensure the stability and the structure of housing could be:

 

• Consolidation works of foundations and pillars

• Reconditioning facades

• To avoid loosening of eaves, cornices etc

• Ensure-structural-safety It shall be deemed as necessary repairs, among many others, common dishes , letterboxes , roofs , facades , paving roads.

 

10.1.1.3 Building defects

 

The General Building Act 38/1999 provides that any developer, builder, architect, supplier, surveyor or even quality control companies taking on work in connection with the provision of a dwelling owes a duty to every person who acquires an interest in the dwelling.

That statutory "fitness for purpose" duty is owed to the purchaser of the dwelling or to any subsequent purchaser. The owner has a claim in tort against those responsible for the design and construction. If his property turned out to be defective, they could claim the cost of putting it right from all involved because of the contractual relationships within a building project frequently involves a number of parties.

 

It is essential to take in consideration that in Spain, judges allow the owner to sue the manufacturer jointly with the builder: where a separate liability for the defects cannot be easily ascertained, both the builder and the manufacturer could be liable. As the Supreme Court has stated, the purchaser should not bear the burden of proof where several parties have participated in a building project and the liability for the defects is uncertain.

A shared liability by the different parties is not unusual, and as a consequence the Court can determine an apportionment However, where it is possible to ascertain who is the only liable party, for instance, a manufacturer, then the purchaser might be entitled to sue him.

 

Section 17 of this Act goes on to say that any legal action brought under this statute must be brought within:

 

i. Ten years since the building was completed in the case of damages caused by flaws or defects which affect foundation, supports, beams, frameworks, load-bearing walls or other structural components that directly jeopardize the mechanical resistance and stability of the building.

 

ii. Three years since the building was completed in the case of damages caused by flaws or defects which affect the liveability of the building such

 

iii. as healthiness, internal impermeability of the building, acoustic and heat insulation, energy consumption.

 

iv. One year since the building was completed in the case of damages caused by flaws or defects which affect the finish of the building.

 

The obligations and liabilities of the individuals or bodies who take part in building construction are regulated by the General Building Act .The main responsibilities fall upon the builder, though he is not the only one that must be responsible. The developer, architects, suppliers and quality control companies who take part in the construction have liabilities to the proprietary and third buyers of real estate or part (report) of the same ones, in case of complaints as deficiencies (faults).

 

The CA ruling in Vizcaya 02-10-2008 holds responsibility to a commonhold for common elements repairs even in case of building defects which had not ever been claimed. . Thus, remedying defects in the original construction are within the scope of the commonhold’s duty to repair.

 

10.1.1.4 Imperviousness and pipes maintenance

 

The commonhold shall be responsible for any damages in the units caused by damp in common parts such as ‘pillars, girders, forged and supporting walls, facades… ’ Where the source of the damp is not located within a unit, the commonhold must carry out the necessary repair works and could be liable under negligence.

The CA ruling in Alicante 17-09-2008 dealt with seep from a patio The CA ruling in Madrid 20-6-2005 held that the commonhold is not accountable for leaks derived from building defects. Most of the times, it is not possible to find the exact source of the damp because it is very widespread .

It could occurs a conflict between two commonholders, because of damp, without intervention of the commonhold, in that case is a question of two in which it will be necessary to find out where the source of the damp is located. In this case the commonhold is discharged because there are no common parts involved. It shall be a duty of the commonhold to maintain pipes within the common areas to the limit of units .

More specific the CA ruling in Toledo 26-10-2000 held that the stopcock is the division point between the unit and the common area. 10.1.1.5 Serious consequences because of lack of maintenance.

The CA ruling in Lleida 10-06-2007 declared responsible for damages in a case in which a unit-holder felt down because of the bad condition of the banister. The Supreme Court 19-02-2007 in another case of a fall exonerated commonhold from responsibility because the unit-holder knew the state of the steps.

The CA ruling in Burgos 11-12-2006 argued that there was no responsibility for the commonhold, because damages to the vehicle were caused by strangers in the community garage. The same court ruled in 29-03-2006 responsibility to the commonhold because damages caused to a vehicle due lack of maintenance of the roof. The CA ruling in Madrid 02-11-2005 held that there was no responsibility for the commonhold in a case in which a motorcycle was stolen from the common garage.

The CA ruling in Alicante 21-04-2008 deemed commonhold responsible because of a fall in the swimming pool due to not having a non-slip floor.

 

10.1.1.5 Prescription of the right to claim for damages.

 

The Supreme Court ruling of 13-07-1995 held that the term is 15 years under section 1964 of Civil Code. The same approach took the CA ruling in Huelva 28-03-2006 and Barcelona 03-06-2005. Others courts like the CA in Valencia and the CA in Asturias held that the term shall be one year.

 

10.1.2 Access and facilities for disabled

 

Physical barriers to access, determined by the design or construction of the commonhold, may create areas that make it impossible or very difficult for disabled people to access.

They can be fittings, fixtures, furniture, equipment, machinery, materials or any other physical element such as steps, stairways, kerbs, floors, paving doors and gates.

This subsection (b) imposes a duty to make alterations and changes to physical features in order to facilitate access to disabled, only where the cost of such works are less than twelve months of community fees.

There is no majority needed to carry out such works provided that the requirements of this section are fulfilled. Rules provided in this subsection are not applied to premises.

Premises-holders cannot apply for this benefit, but could reach an agreement by ordinary resolution in which the commonhold assumes the cost of those alterations. In any case premises-holders cannot be prevented from making reasonable adjustments to take positive steps to make their premises accessible to disabled people where they pay costs.

 

10.2.1 Applicants

 

In legal terms a person is considered physically disabled if he or she has a mobility impairment which has a substantial, long-term and adverse effect on his or her ability to carry out normal day-to-day activities.

To this Act, it is not necessary any medical or official acknowledgment in order to be considered disabled. CA ruling in Ciudad Real 06-05-1994

 

Applicants could be, unit-holders in defence of disabled ’people or over the age of 70 who are living, working or providing altruistic or voluntary services

Although the Act stipulates who is entitled to apply for those alterations, tenants or other occupiers could be applicants too under section 2 (1) of the ‘Limits on real estate ownership to avoid physical barriers to disabled people 15/95 Act.’

In section 17 (2) we will deal with a special majority required to agree the works or actions as may be necessary to ensure reasonable adjustments regarding universal accessibility

 

10.2.3 Occupation of common elements

 

It is only allowed the occupation of common parts not the private ones

 

10.2.4 The construction of new floors and an other alteration to the structure

 

Obviously when a planning body includes any physical part of the community in an urban project there is no get away for the community but the challenging of the regulation at an administrative court. Problems arise when it comes to set up the new allocations after the alteration is done.

The consolidated text of the Land Act approved by Royal Legislative Decree 2/2008 has been repealed by the Land and urban regeneration Act approved by Royal Legislative Decree 7/2015. There is no reference to the setting up of a real estate development in section 17.4 of the new Act.

 

10.1.5 Actions for the material division of units

 

This subsection deals only when the commonhold is included within the scope of action of urban rehabilitation, regeneration or renovation. The inclusion of the commonhold in such scope of action must be decided by the OC, the quorum for this decision is set up in section 17.

 

10.2 Payment of expenses

 

10.2.1 Owners’ Committee function

 

As these works (a to d) are compulsory the OC shall be limited to the apportionment of the relevant levy and the determination of the payment terms thereof.

 

10.2.2 Individual accountability

 

The individual accountability of the rebel owner is rarely demanded by public bodies, they are going to sanction the community, they don't want to enter in discuss individual responsibilities.

Non payment the special levy by any owner is not enough excuse for the community to stop the works but if the owner block or hamper the works will be accountable to the public bodies.

Likewise if any harm is caused to the community because of the individual hindering the owner shall be accountable to the community under subsections ((a) and (b) of 9.1 and section 1.902 of the Civil Code.

Therefore the community must specify before the public body who and why the works can’t be done.

 

10.3 Public permission required

 

10.3.1 The constitution or modification of the real estate development.

 

There is no section 17.6 in the new Land Act.

 

10.3.2 The material division of individual units

 

Another reference to section 17 (6) of the Land Act in subsection 10.3 (b)