Procedural errors in community meetings create litigation that should never happen

The Horizontal Property Act — Ley 49/1960

Ley 49/1960, of 21 July, de Propiedad Horizontal (LPH) governs the legal regime for buildings divided into privately owned flats or commercial premises, with common elements held in undivided co-ownership by all owners in proportion to their participation quotas. The community does not have separate legal personality but has capacity to act in court and to enter contracts.

The governing bodies are:

• Junta de Propietarios (General Meeting): the supreme decision-making body
• President: legal representative of the community
• Vice-President (optional)
• Secretary-Administrator: may be an owner or a professional property administrator

The most significant recent reforms have affected: accessibility obligations, EV charging point installation, energy-efficiency works, and — most consequentially — tourist rental regulation.

Quorum Requirements

The LPH sets different voting thresholds depending on the nature of the resolution:

Simple majority (more than 50% of owners present or represented, representing more than 50% of participation quotas): ordinary management, service contracts, routine repairs.

Three-fifths majority of owners representing three-fifths of participation quotas: establishment or removal of concierge, security, or surveillance services; limitation of tourist rental activity (Art. 17.12 LPH); change of administration system.

Unanimity of all owners representing all participation quotas: amendments to the constitutive deed or by-laws; resolutions modifying the rules in the title.

Absent owners who receive notification of a resolution adopted at a general meeting have 30 days to adhere to it or register their dissent. Their silence is deemed a favourable vote in certain circumstances.

Recovering Unpaid Service Charges

The proceso monitorio (Art. 21 LPH) is the most efficient procedure for recovering community debts. The court requires the debtor to pay the certified amount, and if the debtor neither pays nor opposes within 20 days, the court issues a decree with immediate enforcement force — no full trial or judgment is needed.

The property is preferentially liable for community debts from the current year and the preceding three years, even ranking ahead of mortgage lenders. This means enforcement can proceed against the property even if it has been sold to a third party, provided the debt was incurred within the three-year window.

Tourist Rental Restrictions — Art. 17.12 LPH

Ley 12/2023 gave communities a clear tool to manage the proliferation of tourist apartments. By a three-fifths majority of owners and quotas, the general meeting may:

1. Limit or conditionally permit tourist rental activity in the building
2. Establish rules that owners conducting tourist rentals must observe
3. Increase the contribution to general expenses by up to 20% for owners letting their property as a tourist apartment

The resolution does not affect existing tourist rental contracts but applies to all new contracts. A complete prohibition requires unanimity — which in practice is very difficult to achieve unless the by-laws already contained the prohibition before the 2023 reform.

Challenging Community Resolutions

The grounds for challenging resolutions under the LPH are: (1) contrary to law or by-laws; (2) seriously detrimental to the community’s interests; (3) causing unjustified serious harm to a specific owner, including resolutions adopted with abuse of right.

Time limits are short and their breach makes even unlawful resolutions final:

• 3 months from notification (or from the date the owner became aware) for resolutions challengeable for harm to individual interests
• 1 year for resolutions contrary to law or by-laws
• No time limit for resolutions that are absolutely void (adopted without formal convocation, without any quorum, or in manifest violation of fundamental rights)

Claims are brought before the Juzgado de Primera Instancia (first-instance court) of the district where the building is located, against the community represented by its president. Suspension of the challenged resolution as an interim measure pending judgment may be sought where execution would cause irreparable harm.

Common Procedural Errors

The most costly disputes in horizontal property originate in avoidable procedural errors:

1. Incorrect quorum: the most frequent cause of successful challenges. Unanimous approval is required to amend the constitutive deed; three-fifths for tourist rental restrictions; simple majority for ordinary administration. Confusing the required majority invalidates the resolution.

2. Defective minutes: a validly adopted resolution may be successfully challenged if the minutes do not accurately record what happened, if dissenting votes are not recorded, or if notification to absent owners is sent outside the 30-day LPH deadline.

3. Works without community resolution: the president and administrator have no authority to approve works on common elements — facade, structure, roof, general installations — without a prior general meeting resolution. Unauthorised works may be ordered reversed at the infringer’s cost.

4. Not pursuing debt recovery promptly: the five-year prescription period under Art. 1966 of the Civil Code continues to run while the community refrains from judicial action. If the property is sold before the debt is formally claimed, the purchaser may not know it exists if the community certificate does not reflect it correctly.

This service is part of our real property and civil law practice.