Hi Mark
Sorry addtional information hereunder
"The Administrator then informed that pursuant to the horizontal Property Act, owner are entitled to
object to paying extraordinary contributions for services considered non essential, on condition that
they do not use said services. On the basis of the same principle, and given the unfair situation
caused by owners who fail to pay their fees, but continue to use very costly services, such as pool
maintenance, paddle tennis courts, WiFi and in other communities gymnasiums, spas, etc., specific
instructions for all Colleges of Registrars were published in the Official State Gazette regarding the
procedure to follow if Communities of Property Owners wished to include said exclusion in their
Statutes and then register the modification. Thus a proposal was made to include the following rule
in the Community’s Statutes:
have not paid their Community fees, both ordinary and extraordinary. This restriction will be applied
to owners of dwellings and to all occupants thereof (guests, tenants, family members, etc.).”
“NON ESSENTIAL SERVICES are those that do not hinder the habitability or obstruct access to
private elements: use and enjoyment of closed areas (pool, pool terrace and lounge areas, library,
tennis/paddle courts, etc.), community Wi-Fi or other similar services, as approved by the General
Meeting that are maintained and paid for by the economic contributions of owners.”
“For the purpose of the foregoing, in order to be considered a debtor, the latter must have been
asked to pay the outstanding balance by the Administration or the President by means of a reliable
notification. In the event said notification is not possible, Section 9 of the Horizontal Property Act
shall be applied”.
A vote was then taken to approve modification of the Statutes as proposed
“The Community reserves the right to deny access to NON ESSENTIAL SERVICES to owners who
9) Agreement to modify the Community Statutes in accordance with the new
interpretation of the Horizontal Property Act published in the BOE [official state
gazette] on the 20th of November 2012 regarding restricting the use of nonessential
Community facilities by debtor owners"
http://www.boe.es/boe/dias/2012/11/20/pdfs/BOE-A-2012-14272.pdf
Translated version
"GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80637
III. OTHER PROVISIONS
MINISTRY OF JUSTICE
14272
Resolution of October 23, 2012, the Directorate General of Registries and Notaries, in the appeal against the
rating of the property registrar of Mazarrón, by suspending the registration of a statutory amendment writing
community owners.
In the appeal filed by Mrs. L. L. T. on behalf of the Owners Residential 4 P. qualification against Property
Registrar of Mazarrón, Cotillas Eduardo Sanchez, by suspending the registration of a statutory amendment
deed ownership of property.
Acts
I
By deed authorized by the Notary of Puerto de Mazarrón, Don Alejandro Fernández Toro, dated April 23, 2012,
under number 234 of his protocol of the year, was given by the representation of the Owners Residential 4
P . an elevation public agreements resulting from the same act that is incorporated into the matrix, the sixth
point of such agreements is a statutory modification with the inclusion of a new Article tenth of the legal
regime of the horizontal division of the community . This new section shall read as follows: "The owners make
no contribution or are in arrears in paying their community fees, regular or special, shall be denied access to
the community pool and tennis courts." Agreement was approved unanimously by those present and sent the
minutes of the absent reliably, warning that without negative response occur within the statutory period, would
be empowered to grant President of the deed to the registration and processingregistration.
II
The above writing was filed in the Registry of Property of Mazarrón on April 23, 2012, and suspended the rating
for lack of evidence of payment of the tax; occurs again on paper, after the accreditation of payment tax, on
May 4, and was the subject of negative rating May 22 that reads as follows in pertinent part: "Qualified
licensed notary public document on paper in Puerto de Mazarrón, before the notary Don Alejandro Fernández
Toro , on April 23, 2012, protocol number 234, presented under the seat 64 Journal 1135, after examining the
records of the Register, the Register of Deeds undersigned, to this date requested registration suspended
based on / the Next / s facts / s rationale / s of law: Facts: 1. ° In the Legal System Horizontal Property
owners of independent departments that comprise as minimum content of rights, it is for joint ownership with
others owners of flats or premises of the common elements, and therefore the use and enjoyment
thereof.Therefore, the statutory provision by which, for non-payment of community fees is ordinary or
extraordinary blocks access and therefore the use of the common elements is contrary to the peremptory norm
that determines the minimum content of the rights of holders and local stories. Note, that the consequences of
non-payment of such fees as are prescribed by law that sets a particularly agile process to collect on judgments
of them, the condition of private elements to the cost of community current and annuity
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GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80638
previous suspension of voting rights in the community meetings held, but at no time contemplated by such
defaults limit the use of the common elements and the less of the proprietary. So, being the statutory
provision whose registration is to contrary to mandatory rules, under the Horizontal Property Act itself by the
delimitation of the minimum content of the rights of the holders of the separate departments, it is not possible
to practice the registration requested. To that / is made apply the following grounds: 1. ° Articles 3, especially
the letter b), 5, 9 first e), 18, 21 and related provisions of the Condominium Act and Article 6 of the Civil
Code . Against this (). Mazarrón, May 22, 2012. The registrar. (Sign illegible). "
III
On June 13 requested substitute rating, corresponding to the register of Murcia Property No. 4, María José
Quesada Zapata, which issued its rating on June 20, confirming the negative rating.
IV
On July 27, Mrs. L. L. T. in the representation of the Owners Residencial 4. P. appealed against the rating,
which in essence argues as follows: "1. It prevents the entry of the amendment of the master deed of the
homeowners that forms its statute, because the recorder understood to contravene mandatory standards in
order the minimum content of the rights of the holders of separate departments. Article 5 of the Condominium
Act admits that the title may contain rules and regulations exercise of rights not prohibited by law in order to
use facilities, observing for any change in the title the same requirements as for the
constitution. Requirements have been met to proceed with changing the title in order to the decision of the
board of owners, and have been freely owners who have decided to limit property rights in the use of certain
ancillary facilities of the property. Therefore remain safe individual elements of each owner and parties in
ownership of key services, such as elevators, stairs and light cleaning of the building. Two. The limitations on
the powers are not forbidden Sunday imperatively in the legislation. The Supreme Court Jurisprudence
recognizes in setting a criterion that "these limitations can not be assumed, nor be interpreted so extensive
'. So the limitations allowed private elements relating to certain commercial activities that would be permitted
anywhere but not in that space. Well, in the same way be admitted to common elements. Similarly, Article 7.2
of the Condominium Act empowers the homeowners to totally restrict the property rights of the owner to the
extent of three years, if within the element are developing proprietary annoying, unhealthy, noxious,
dangerous or illegal. It is true that the Civil Procedure Act and the Condominium Act establishes a procedure
for special features for the collection of the debts of the homeowners, but then to such a procedure being
agile, shows a lack of speed of the Spanish justice. Debts take one or two years to not already collected, but
declared, with no possibility of being extended by the passage of time, new procedures should be promoted for
collection. Three. It is a modification of the instrument creating the homeowners, which has been done with
the legal requirements, the amendment being adopted unanimously by all present and absent owners. This
modification is intended to prevent abuse of some system owners through Article 5 of the Condominium Act
and the rules of procedure set forth in Article 6 of the Act, because it is the right limit ownership of common
elements. Y is used
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GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80639
the predetermined procedure of Article 5 of the Condominium Act, that such a ban is included in the statute,
because otherwise no one would be deprived of using the property as best consider, and this real right of
broader content, like to enjoy and dispose of things without other limitations than those established by law
(Civil Code 348), and based on the possibility that by the statutory provision is possible imposition of certain
restrictions on the property. The Court has declared that such limitations be construed restrictively as
constituting an interference with property. (Judgments of the Supreme Court of February 6, 1989, July 24,
1992, April 21, 1997, February 29, 2000 and January 26, 2002) ".
V
By letter dated August 7, 2012, the register of the property issued its report and submitted the file to the
Management Centre (with check on the 9th of the same month).
Law
Having regard to Article 396 of the Civil Code, 3, 5, 9 first e), 11.2, 15.2, 18, 21 and related provisions of the
Condominium Act; Judgment of the Constitutional Court of October 21, 1993, Supreme Court Decisions 6 July
1978, January 28 and March 8, 1994, the Constitutional Court Judgment 301/1993, of 21 October, and the
resolutions of the General Directorate of Registries and Notaries of June 4, 2003 and 18 June 2010.
1. You must decide on this record whether or not registrable deed of amendment of the articles of a community
of owners in horizontal property regime, which includes an article by which blocks access to the community pool
and tenniscommonalities-tennis-owners who do not contribute or are in arrears in paying their community fees
ordinary or extraordinary. The point is to determine whether it can establish statutory rules which make
limitations on the use of certain elements in common, the lack of payment of community fees in view of the
regulation in the Condominium Act systems and procedures for performing the above odds.
Two. The legal nature of condominiums is based on the coexistence of the property of the various elements
that may be utilized independently and special joint ownership of the common elements, so that both
ownership and private elements of common ownership are inextricably linked. This follows from Article 5 of the
Condominium Act, which states that the title may contain rules governing the constitution and practiced law
and provisions not prohibited by the Act in order to use or purpose of the building, different floors or premises,
facilities and services, forming an exclusive status. The Board has declared Center (seen) the horizontal
property regime is characterized by the existence of a single object whose property rights is complex: the
floor, exclusive local or department and inseparable in ownership separation of the elements, belongings
and common services of the building, in accordance with Articles 3 of the Condominium Act and 396 of the Civil
Code, whose main features is the inseparability and unavailability of the parties share joint ownership of
common elements, although this does not necessarily imply intensity equal right over them all, being necessary
to meet the characteristics of the goods themselves to appreciate that intensity, starting at any rate the
subordinate nature of the common elements that remain are precisely defined by the proprietary service,
while are needed for use and enjoyment, as proclaimed in Article 396 above. And yet one would, for these
purposes, differentiate between those
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No. 279 Tuesday November 20, 2012 Section III. Page 80640
common elements defined as precisely as indispensable in every respect for the proper exercise of the right of
separate property on private elements, in which the intensity of the right must be virtually identical to that of
which holds about one's private elements, and those that are common for express voluntary, common elements
by destination, whose legal system is, from the outset, defined the bargaining will manifested in the master
deed or bylaws.
Three. The horizontal property regime and its exclusive status is governed primarily by the mandatory rules of
the Condominium Act and secondly by the autonomy of the parties, embodied in the master deed and bylaws,
but in this second case, only they do not oppose the Horizontal Property Act itself and its mandatory rules, and
Article 396 of the Civil Code, especially in your last paragraph, and Articles 8.4. º and 5. ° and 107.11 of
the Mortgage Act. Indeed, the Supreme Court, in a judgment dated 8 March 1994, citing law that proclaims
that the general rule regarding condo is the imperative, not autonomy. But this does not preclude the possible
agreements or statutory changes that do not affect the essential structure of horizontal property regime are
consistent with it. At this point it should be noted the different classes of common elements, and the
possibility of attribution of exclusive use to certain owners to the exclusion of such use to others, and also the
rules on contribution from owners on specific improvements facilities and the ability in some cases to deprive
them of the improvement or benefit to those who have decided not to contribute to your installation (see
Article 11.2 of the Condominium Act).
April. On this basis, it must determine whether the statutory provision referred to the negative rating of this
resource object exceeds the horizontal property regime for mandatory rules contravene or violate the essence
of the right of ownership. In writing of this file object, intended to be limited normal and essential content of
the co-ownership of the common elements regarding private elements those owners who are not current in
payment of dues of ordinary and extraordinary community, prohibiting access to Community pool and tennis
courts also common. Certainly the Condominium Act, in the case of default of payment of community has
provided the implications and consequences of this regulation is contained in mandatory rules. Hence these
consequences consist of privileges and limitations as the real condition of the floor to the costs of the current
and previous annuity (article 9.1 of the Condominium Act), or the suspension of the voting rights (Article 15.2
of the Law Horizontal Property), or a special procedure for payment (Article 21 of the Condominium Act). But
the mandatory nature of these provisions, which necessarily has to involve the inability to alter the terms
contained therein by agreement, not exclude, however, that bargaining will establish forecasts parallel and
complementary to those specified therein, not only not be considered contrary to such expectations but
consistent with the purpose of the legislature that each owner contributes to the payment of the common
elements not to harm others, in the meantime, they should meet with their own assets the owner nonpayment
of delinquent . The condo specialty is precisely that with custodial property there is a community on the
common elements must contribute to its upkeep by all co-owners. The Constitutional Court in Case 301/1993,
of October 21, highlights (third legal basis), in the condo, "you need to balance competing rights and interests
of a plurality of owners and occupiers of the flats, justifies undoubtedly legal or statutory fixation of specific
restrictions or limits on the rights of use and enjoyment of the property by their respective owners' argument
that the Court applies to proclaim the constitutionality of the rule in the last paragraph Article 7 of the
Condominium Act, as set
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No. 279 Tuesday November 20, 2012 Section III. Page 80641
a civil penalty of temporary deprivation of the use of proprietary element itself, "wherever it appears certain
violations of the ordinance." Certainly in the case of Article 7 is temporary deprivation of use of the home
pursuant to a court by reason of a prohibited activity, but this shows that he is against the condo regime
deprivation of the use of certain items when there is reason to justify proportionality. In this case, the
statutory provision refers only to the deprivation of access to a special class of common elements such as the
pool and tennis courts, which fall within what could be considered common elements are those needed
to habitability, security or accessibility of the property, but his character beyond what could be considered
elements for housing and as it is not deprivation of property rights but their mere use with merely possible
until there is an at Day in contributing to the maintenance costs required, must be regarded as affecting the
substance of the right of ownership, but on the contrary, that limitations are consistent with this regime of
property that is community property horizontally. Article 11.2 of the Condominium Act and provides that
certain owners do not enjoy the benefit of those improvements or facilities to which they have contributed. It
is also fully recognized that is attributable exclusive use of certain elements common to some owners to the
exclusion of others in the case of patios or decks or other exclusive use. Similar considerations lead to a
statutory provision that prohibits access to the common elements of pool and tennis court owners who do not
contribute to its maintenance or so and only casual or temporary, can not be regarded as contrary to the law
nor those of condominiums, being a statutory covenant that contributes to all owners share in defraying the
expenses derived from these common elements.
May. The statutory provision therefore is deemed consistent with the law, since neither expresses no
mandatory rule contravenes or violates the minimum content of the right to property, given that only
represents a temporary deprivation of the right to use, for some elements not necessary for the proper use and
enjoyment of the corresponding element proprietary, and thus as a result of the violation, by the subject that
will suffer the suspension of the rules governing the maintenance of the property.
Accordingly, this Department has agreed the action brought and revoke the note rating.
Against this Resolution may use the legally legitimized by application to the Civil Court of the capital of the
province where the property lies within two months of notification, be subject to the regulations of the oral
proceedings, all in accordanceto the provisions of Articles 325 and 328 of the Mortgage Law.
Madrid, October 23, 2012.-The Director General of Registries and Notaries, Joaquín José Rodríguez Hernández.
CVE: BOE-A-2012-14272
GAZETTE http://www.boe.es D. L.: M-1/1958 - ISSN: 0212-033X
Regards