Community of Owners or "Comunidad de Propietarios"
Perhaps one of the most asked questions by homeowners expats in Spain.
Circumstances change along our life and therefore our needs. There comes a moment that once was a perfect home, it is no more now. So to glaze a terrace to avoid cold in winter or noise due to a new opened deafening adjacent road, or maybe to build an additional room and thereby gain a few meters of cover space or to use an aluminum structure in order to expand the kitchen are some options much needed in a particular moment in time.
But what are the necessary permission required by our hypothetical home owner living in a Community of Owners?
All permissions must be obtained in writing. To carry out these changes it is required the prior authorization of the Community of Owners and to obtain a municipal building license. Without these permissions, our homeowner may be forced to demolish the work carried out and to rebuild the property to its initial state, so it is not a trivial matter, therefore it is advisable not to start any modifications until all the permissions have been obtained "in writing" and I must stress the in writing part.
I have witness the embarrassing situation in my own community of an owner who changed the roof structure of the building (a common element) building some skylights to provide light and ventilation to a his new apartment layout. He did obtain verbal permission from the last president but some owners complained in the General Annual Meeting and the majority of owners were of the opinion that the last president exceeded his authority to grant such a license without the approval of a General Meeting and the General Meeting agreed to ask the owner to demolish the work carried out and to rebuild the property to its initial state. The matter is now pending a judicial decision. Not a pleasant situation by any means.
It is my property!!
It is common believe that the terrace belongs exclusively to the owner of the apartment below, but this is not really true. While those living in a block of apartments may have the exclusive right to use and enjoy the terraces, these form part of the external configuration of the building and therefore they are considered common elements. Thus establishes it the Spanish Civil Code in its article 396 which in a nut shell states that although an owner may have the private use of an element of the building, that element does not belong to the owner but to the whole community and therefore the community is responsible to maintain it even though that only one owner can enjoy it or benefit from its use.
It may affect the deeds of the whole building.
Thus, covering up a terrace or balcony is a substantial alteration of the common elements of the building and even affects the deeds of the property because it introduces an additional covered space not previously described in the deeds of that property and therefore not calculated when allocating the participation fee of that particular home in the total of the community.
To carry out such modification is necessary, therefore, to have the prior approval in writing of the Community of Owners. It is a building work that clearly alters the external state of the building, this permission has to be unanimous at the General Meeting of Owners.
According to article 7.1 of the Horizontal Property Law, the owner of each apartment or premises may modify the architectural elements, installations or services from that when it does not adversely affect or alter the safety of the building, its overall structure, its configuration or exterior state, or prejudice the rights of other owners, such works must be informed previously to those who represent the community.
Even if the Community refuse to allow the works.
The refusal of the Community of Owners not always implies the impossibility of performing the works because the agreement could be challenged by one owner (normally the affected owner) therefore, the first step is to inform the President of the Community about the building works which it is intended to carry out.
The notice convening the meeting which will discuss the issue normally it is instigated by the President. It will indicate the place, day and time that the meeting will be held in first or second call. The vote requires unanimity among the neighbours at the meeting. Article 12 of the Horizontal Property Law which states that the construction of new extensions and any other alteration of the structure or building shell or common element that may affect the established title deeds must be subjected to the regime established for the modifications of the same, can only be done if everyone vote in favour. If one of the neighbours does not agree, the work which was intended to carry out cannot be executed. If there is a precedent...
However, the refusal of the Community of Owners not always implies the impossibility of performing the work because the agreement may be challenged at law. If the community has given authorization to other neighbours to make similar enclosures, should consent to the person concerned to carry out the work. Even if this permission was not granted but was allowed by not denouncing it. If it did, it would be a comparative tort.