Legal capacity to sue.
As a legal entity or artificial person with some peculiarities the commonhold is entitled to take action to ensure the recoverability of the service charges trough its president or administrator.Presidents do not need a special authorization (SC 20-12-1996 CA ruling in Madrid 16-05-2008 CA ruling in Asturias 22-04-2008) from the OC to go to court if they have ‘certification of the Owners’ Committee decision approving the debt settlement due to the commonhold, issued by its secretary’.
It is another function of the president as it is laid down in subsection 13 (3) ‘the president shall legally represent the commonhold both in and out of court in all matters affecting it’.
Even so, in order to avoid procedural flaws it is wise to enclose the special authorization from the OC to take court action to recover unpaid fees. In contrast with presidents, administrators must be specially empowered by the Committee in order to represent a commonhold at court.
Where there is a defaulting president, the Committee has to empower the administrator to pursue the court action against the defaulting president.
Unit co-owners in default
In the case of co-ownership of a unit, the commonhold may act against any of the co-owners and they shall be accountable jointly and severally. CA ruling in Madrid 07-02-2006 CA ruling in Barcelona 09-10-2007 CA ruling in Alicante 16-02-2005
Legal capacity to be sued.
Under subsection 9 (h) of the LPH every owner must notify the person acting as commonhold secretary , by any means ensuring proper evidence of service for, the domicile in Spain for the purpose of receiving summons or communications of any kind related to the commonhold. In absence of this notification property shall be deemed to be the owner’s domicile by default, and any notices served on the occupant shall constitute full legal effect.
Should service of notification or summons at the place indicated in the preceding paragraph be impossible, it shall be deemed to have taken place if the communication is affixed on the notice board of the community, or at a visible place set aside for this purpose.
The notice should, indicate the date and the reason for which this form of notification is used, should be signed by the person acting as community secretary and endorsed by the president. A notice served in this way shall produce full legal effect following the term of three calendar days. .
Joining of actions
Defaulting owners may all or part joined in one action on the ground of economic reasons, CA ruling in Almeria 04-05-2004 Court of appeal in Huelva 24-05-05 CA ruling in Madrid 07-06-2005 and 24-10-2011, however it is not an operative solution because proceedings become complicated where part of the debtors oppose, others pay the debt within 20 days and the rest remain silent. Other courts do not admit that possibility CA ruling in Baleares 22-10-2003 CA ruling in Madrid 06-02-2004, CA Barcelona 30-04-2012