Section 2 Scope of the Act
This Act shall apply to:
a. Commonhold land formed in accordance with the provisions of section 5
b. Commonhold land fulfilling the requirements established in section 396 of the Civil Code and for which no commonhold community statement has been filed. In any case, for matters relating to the legal system of ownership of private units and common parts, and for those regarding reciprocal rights and duties of commonholders, these commonholds shall be regulated by the provisions of this Act.
c. Private real estate developments, in the terms stipulated in this Act.
d. Sub-commonholds, as defined according to the title of the commonhold as when any of the co-owners hold certain facilities or communal services for independent use and enjoyment, endowed with economic or functional independence.
e. Development Maintenance Entities if provided by their Articles.
2.1 Registered commonholds
Section 5 provides rules in regard the constitution of commonhold .
2.2 Unregistered commonholds
The Act not only applies to land registered as a commonhold land. It is submitted that unregistered commonhold land is also within the scope of the Act .
That was the approach held by the rulings of SC 23-10-2007 and 17-07-2006, CA ruling in Murcia 17-12-2001, CA ruling in Barcelona 10-11-1998, CA rulings in Madrid 08-03-2006 and 06-07-2005, CA rulings in Alicante 24-11-2004 and 03-10-2007, CA ruling in Malaga 26-06-2002, CA rulings in Zaragoza 29-07-2002 and 11-03-2005, CA ruling in Barcelona 14-01-2004 and CA ruling in Valencia 15 06- 2005.CA ruling Tarragona 24-01-2012
Subsection (b) of this section expresses where the Act is applied. It is not clear which sections of the Act shall govern these unregistered commonholds. However where a co-ownership meets the requirements laid down in s. 396 of the Civil Code, "flats or premises of a building or parts of them that can be subject to independent use by virtue of an entrance from either the public thoroughfare or a common area might be the object of separate ownership which shall involve an inherent common property right upon the common parts of the building which are all those necessary for the use and enjoyment" sections 3, 7 (1), 9, 10, of the Act, duly adapted, could be applied, whereas sections 5 ,section 5 deals with contribution to the expense of the commonhold. Where there is no title, the allocations are in principle equal between commonholders, 9 (e), 10 shall not be applicable.
Where a developer does not register the commonhold land, units will have no access to the Land Registry, unless commonholders follow the special procedure established in s. 199 (a) of the Mortgage Act . The delay in activation of the commonhold marks out the principal distinction between a registration process by a developer (where the units will be newly built), who registers the commonhold before the sale of the units, and a registration of an existing development where there is already occupation.
It does not matter that the commonhold fails to obtain planning permission or occupancy licence in order to apply the provisions comprised in the Act.CA ruling in Tarragona 30-10-2002 CA ruling in Huelva 20-04-2005 CA ruling in Seville 06-05-2005
2.3 Private real estate developments
The act shall apply to these developments which fulfill the conditions of s (24) That was the approach held by the rulings of SC 21-10-2010, CA ruling in Vizcaya 14-04-2010
See s. (24)