Section 1 The statutory definition
This Act purports to regulate the special type of property ownership laid down in section 396 of the Civil Code, known as horizontal property. For the purposes of this Act any part of a building that can be subject to independent use by reason of an entrance from either to the public thoroughfare or a common part shall be considered as premises.
1.1 Commonhold law in Spain
It is called ‘horizontal property’ in Spain because when the Act was enacted in the 1960’s, the country was flooded with blocks of flats. The term ‘horizontal’ was coined because buildings were divided horizontally between flats.
1.2 Nature of commonhold
The term commonhold describes a form of land ownership which combines freehold ownership of a single property (such as flats, offices, shops or houses in larger developments) with membership of a corporate body that owns and manages the common parts of the development which do not form part of a unit. The ‘common parts’ could include shared facilities such as the roof, stairs, car park, swimming pool and any common areas. Each owner is the individual owner of his own unit and joint owner in forced ‘indivision’ of the common parts. The common parts are owned and managed by a particular juristic person known as the Commonhold Association, established for the purpose of providing services on a non-profit basis to its members who own and control it and whose membership is limited to owners within the commonhold. Although commonhold is most commonly adopted for flats or semidetached houses, it is suitable for separated houses in private developments and even for business or commercial premises that share common elements. A commonhold can be constituted in cases of marinas in relation to mooring points, markets in relation to stalls, cemeteries in relation to graves and in other similar cases. This section specifies the aim of the Act which is to govern the special type of property ownership established in section 396 of the Civil Code - which provides the definition of commonhold land called ‘horizontal property’. It is submitted that the second paragraph of this section is badly worded and superfluous. It is only a reiteration of the unit’s definition contained in s. 396 of the Civil Code in order to include premises in the unit’s concept.
1.3 Legal Framework.
The current legislation Although the commonhold structure outlined in the Act appears simple, a great deal lies below the waterline. The rules and regulations that go to make up the remainder of the structure are to be found in a number of different statutory materials. The last paragraph of section 396 of the Civil Code lays down the legal framework of the commonhold land. The Supreme Court in its judgment of 30-05-1997 set out that in order of priority commonhold land is governed by the following statutory materials: i. Commonhold Act 49/1960 , s. 392-396 of the Civil Code and sections 8(4), (5) and 107 (11) of the Mortgage Act ii. Articles of the Commonhold Association (if they exist) iii. Internal rules (if they exist) iv. Code Civil provisions about ownership and co-ownership
1.4 Catalonia Law
Since the enacting of the 5/2006 Act, Catalonia has its own enabling legislation, therefore, all commonhold land located within the boundaries of that region is subject to law other than the explained in this book.
1.5 Legislative history of commonhold law in Spain
The genesis of commonhold law in Spain can be traced back at least as far as the point when the Spanish Civil Code was given royal assent in 1889. The first reference to commonhold land was provided by section 396 of Civil Code (which was amended after Spanish civil war in 1939). Because the proliferation of blocks of flats throughout Spain, the legislator recognised the inadequacies of the existing law which failed to meet the needs of communal living. Accordingly, the Horizontal Property act 4/1960 was created.
The Act and its subsequent reforms amended s. 396 and 401 of the Civil Code, as well as s. 8 and 107 of the Mortgage Act.
1.6 Amendments of the Act
The current act is the culmination of a half a century process.
The Act has been amended since 1960 by several subsequent acts:
• 2/1998 Act amended s. 9, 15 (2), 16 (2), 20
• 3/1990 Act amended s. 16
• 10/1992 Act amended s. 17
• 8/1999 Act amended s. 1, 2, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 24 and the additional provision as well as s. 396 of the Civil Code
• 1/2000 Act amended s. 7 (2) and s. 21
• 51/2003 Act amended ss. 10, 11 and 17
• 19/2009 Act amended s. 17 (3) (4)
• 26/2011 Act amended s. 10 (2) and 11 (3)
• 8/2013 Act amended s. 2, 3, 9 c) e) f) 10 y 17 and the Additional Provision
• 42/2015 Act amended s. 13 (2)
1.7 Other statutory materials applied to commonhold.
Other legislation is also applied to commonhold land including
• Royal Decree 1093/1997
• Royal Decree 515/1989 which obliges developers to inform about the Land Registry records of the commonhold or the statement that it is not registered yet.
• Royal Decree 3148/1978 which contains a definition of usable area, widely used concept in Spanish property law
• Royal Decree 1368/1992 about legalization of minutes books