2023-10-05 09:36:54
In the image, the protagonists of the series ‘The one that is coming’
In Spain there are 1.2 million communities of owners that move close to 40,000 million euros with the fees contributed by their neighbors to maintain the services of the buildings. Each community spends an average of 33,000 euros annually thanks to the contributions that each neighbor contributes to the community account at the beginning of the month.
The biggest concern of any community president is the consequences for non-payment of fees. As you remember Estanislao Moreno de la Santalawyer of Neighborhoodlate payment “forces the rest of the neighbors to cover their part to support ordinary expenses” but also “greatly limits the liquidity of the accounts and the approval of any improvement to the building because the proceeds will not be paid either, thus increasing the debt.” ”.
This concern about late payments in neighborhood communities has been addressed by both the different governments and the courts to guarantee collection from community members for non-payment of fees. Knowing the requirements to claim the debt and the best way to recover payments from defaulters is essential for the community.
When is a neighbor delinquent?
First of all, The person responsible for paying community fees is the owner., never the tenant when the home is rented. Therefore, a defaulter is any owner who is not up to date with the payment of the obligations due, liquid and payable, both due to non-payment of ordinary installments and extraordinary contributions or the reserve fund.
Enough with him non-payment of a single ordinary or extraordinary fee to be delinquent. For its payment, the payment period must be established in the statutes or in the agreements of the neighborhood association (for example, pay the fee in the first 10 days of each month). In such a way that the owner who does not pay acquires the status of defaulter the day after failing to comply with the deadline stipulated for his payment. However, if the community does not have a specific deadline established to pay the fee, the late payment does not apply until the end of the month on the receipt presented for payment.
Can the defaulter be deprived of the use of the pool or other common elements?
The new wording of article 21 of the Horizontal Property Law allows the community temporarily deprive the use of services or common elements whenever this deprivation is not abusive or disproportionate.
The standard does not establish a closed list of measures, but rather its approval is at the discretion of each community. The most common are the deprivation of the use of the swimming pool, paddle tennis courts or gym. Those communities that have attempted to prohibit more conflictive elements, such as the use of the elevator, have been rejected, “the lower courts have understood it as disproportionate,” according to Moreno.
What’s more, this lawyer recognizes that “reality has shown us that these measures are quite fruitless due to a purely practical issue: who is going to stand between the defaulting neighbor and the pool to prevent their entry?”
Can high interest be imposed on delinquent property owners?
The Horizontal Property Law yes it allows. The owners’ meeting or the community statutes may agree to establish interests higher than the legal one as a dissuasive measure against late payment for the time in which said situation remains.
The advantage of this measure is that it is a “decision that is absolutely impersonal and will be automatically calculated in the installments that the administrator sends when he expresses his willingness to liquidate,” advises the lawyer. Of course, the law specifies that the imposition of an interest higher than the legal It cannot be retroactive in any case..
What steps must be taken to recover the debt?
First of all, we must detail and properly calculate fees that are claimed. It is important to check who is the registered owner of the property to avoid claiming from a tenant other than the owner or the renter.
In the event that the debtor does not make the friendly payment, it is necessary call a general meeting of owners and agree on the debt settlement and his judicial claim, authorizing the president to initiate proceedings before the court. The call for the owners’ meeting contains a moral and legal sanction, because the debt owed by the neighbor must appear in it and the neighbor is also deprived of the right to vote.
Ana Bozalongomember of the Legislation Commission of the General Council of Colleges of Property Administratorsremembers that “once the existing debt from the so-called “accrual of the contributory obligation” has been approved at the community meeting, plus the legal interest and chargeable expenses, the minutes must be notified to the debtor where the total amount pending payment will appear. , the decision to claim it judicially and the power to the president to promote the pertinent lawsuit.”
It is also convenient reliably require payment (by burofax with text certificate and acknowledgment of receipt or communication signed by the defaulter) at the address of the holder giving a specific deadline for payment. Likewise, it may be claimed in a subsidiary manner on the notice board or visible place in the community. If despite these attempts the notification is not achieved, the secretary of the community (generally the property administrator) will issue a certificate indicating this circumstance and the details of the debt. If the lawsuit is finally filed in court, it must be accompanied by documentation that justifies the debt and the attempted notification, if applicable.
How is the judicial claim processed?
Communities with defaulters usually use the monitoring procedure to collect, which allows them to claim monetary debts proven by proof and does not require a lawyer or attorney, although it is recommended.
To go to the monitoring procedure you must provide the agreement of the owners’ meeting approving the settlement of the debt, its notification to delinquent owners and a certificate of the community secretary, with the approval of the president, if the debtor does not pay within three days of notification.
Once the initial petition to the court is accepted for processing, the debtor is required to 20 business days pay or present a written opposition. If you pay, the actions are filed, but if you do not pay or object, the monitoring process ends and the community of neighbors must request an execution office for payment. Another possible situation is that the defaulter presents opposition to the initial request for the monitoring process; in this case, the community can request the preventive seizure of sufficient assets of the defaulter to cover the amount claimed, the interest and the attorney’s and attorney’s costs. attorney.
How long does it take in court to recover the debt?
From the moment the claim is filed in court until the debt is collected It can take between 12 and 24 months. For this reason, “it is much easier to agree on a payment plan when the debt is relatively reasonable than when the snowball has gotten bigger; and, in the event that it is not possible, initiate judicial procedures,” he recommends. Estanislao Moreno.
According to this lawyer’s experience, between 80% and 90% of communities end up recovering not only the fees claimed but also the interest and expenses incurred. And if the community obtains a ruling totally favorable to its claim, it will also be compensated for the attorney’s fees and attorney’s rights derived from their intervention, although their assistance in monitoring procedures is not mandatory.
What guarantees are there to recover the debt?
Compared to other debts, regarding fees owed to the community, They are responded directly to the home, premises or property that originates them. . Even if the defaulter transfers the home and does not pay what is due, “the property can always be auctioned and the entire debt can be settled with the money obtained,” says Moreno.
Community debts are protected by a series of guarantees that allow the community to settle the debt. On the one hand, the credits in favor of the community corresponding to the fees attributable to the current annuity and the three previous years have the preferred status for the purposes of article 1,923 of the Civil Code when they are recorded in the Property Registry.
Furthermore, the new owner is responsible with the acquired property itself for the fees owed to the community by the previous owners up to the limit of those that are attributable to the expired part of the annuity in which the acquisition takes place and to the three previous calendar years. . If, for any reason, the transfer of ownership is not communicated, the former owner would continue to be liable for the debts with the community generated after the purchase and sale jointly and severally with the new owner.
It must be taken into account that in the sale and purchase of homes and premises, the law imposes on the notary the obligation to demand from the seller a certification of the community of owners (issued by the secretary or property administrator) that certifies that the property being sold is up to date with the payment of community fees or, if not, that expresses the amount of the amounts owed. However, the buyer can release the seller from the obligation to present the aforementioned certification by stating so to the notary.
What role does the property manager have in collecting the debt?
As Ana Bozalongo assures, “the intervention of the property administrator is essential when accounting for the debt and mediating with the debtor to prevent the situation of late payment from persisting.” And, in addition to demanding payment in writing, talso intervenes to attempt extrajudicial conciliation.
Likewise, the previous claims of the administrator as secretary of the community are pre-constituted documents with substantial importance in the event of going to court. Thus, the debt certificate issued by the secretary-administrator is a “key instrument for the admissibility of the judicial process,” recalls this jurist.
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