Shared property, shared responsibility

The president of Malaga's Colegio de Administradores de Fincas, Manuel Jiménez Caro, clears up some questions about communities of property owners

Rachel Haynes

Friday, 23 February 2024 | Updated 28/02/2024 14:25h.

Property buyers from outside Spain, whether their new home be in an apartment block or a sprawling 'urbanización', often find themselves faced with the concept of a "community of property owners" for the first time.

All owners of any property with shared facilities, from foyers and lifts to gardens, pools and even private roads, become members of their "comunidad de propietarios".

"These facilities are not in their house itself but they are still the owners of their proportional share of them," said Manuel Jiménez Caro, president of the Colegio Oficial de Administradores de Fincas in Malaga, the official organisation that brings together professional administrators who deal with the paperwork for communities of owners.

Community and president

The owners pay a monthly fee to their community to manage those facilities and hold regular meetings to make decisions, among which are electing the president of the community.

"The president is the legal representative of the community," said Jiménez, but they can only make decisions of their own in the case of an emergency.

"Really, a president cannot do anything that hasn't been agreed beforehand at an owners' meeting," he said, although he admitted that the decision-making in a community can be confusing, even for a Spaniard.

"We are governed by a law that dates back to 1960," he said. "And a community in 1960 was very different from today." The law, he said, known as the "horizontal property law", only has 24 articles and doesn't take into account all of the types of services communities have today, such as pools or padel courts; nor does it mention issues such as energy efficiency. So a lot of today's questions about what a community can or cannot do are answered through precedents set by cases that have reached the courts.

On the subject of the recent case of a president of a community in Estepona who was being paid a large salary, Jiménez pointed out that the law does not state whether or not a president can be paid, although this, like all issues, would have to be agreed at an owners' meeting. In the case that made the headlines, however, the statutes of the community stated that the president's job was not remunerated. "In this case the president was violating his own statutes," he said.

"The owners can agree on whatever they like, but they are governed by the law and their own statutes," added Jiménez.

The administrator

"The role of the administrator is indispensable, and the bigger the community the more indispensable they are," said Jiménez, listing some of the obligations of the community in terms of tax forms, accounting, contracting services, insurance or preparing preliminary proceedings to claim unpaid fees in court, among many others. He stated that, in theory, a community could carry out its own administration, but few presidents would want to take on such responsibility.

The Colegio de Administradores de Fincas in Malaga province has just over a thousand members and a list can be found on its website (cafmalaga.es).

While the law does not specifically say that an administrator taken on to manage the affairs of a community must be a professional belonging to the Colegio, Jiménez said it does require that the person taken on be "qualified". The recent Ley de Vivienda has been more precise as to what these qualifications should be and made civil liability insurance compulsory, something that the Colegio provides for its members.

Dealing with complaints

"But in general an administrator is obliged to work with transparency and honesty and always act in the interests of the community, but if they don't, the owners have the option of filing a complaint [with the Colegio]. That means that we have to impose sanctions or expel an administrator who has been found to have committed malpractice," he added.

Then, of course, a community, if owners agree, can change administrator if they're not happy with theirs. "They need to look at whether they have a contract with the administrator and if so, what this says about notice period," said Jiménez.

Languages and proxy voting

"The only rule there is common sense," said Jiménez, adding that no one could have imagined that situation when the law was compiled back in 1960.

"In a community of this type, I wouldn't take on an administrator who couldn't guarantee that all notifications would be sent out in different languages," he said. A community could pay an interpreter to attend meetings with the administrator, but this, like all decisions, would have to be agreed by owners at a meeting.

At present, community meetings in Andalucía have to be held in person - videoconferences were allowed during Covid lockdown and then stopped. Jiménez is confident, however, that the option will be included in an amendment to the law in the near future, following meetings with the ministry of Justice in Madrid.

Meanwhile, anyone unable to attend can delegate another owner to vote by proxy, but Jiménez has a warning for absent owners.

"There is a common mistake many foreigners make; they tend to give their vote to the president or even to the administrator and they don't realise that their vote can be used for lots of different things. In general, a proxy vote should be given for each specific issue, but many foreigners sign a general authorisation for all the meetings," said Jiménez.

After receiving a call to a meeting, by email or letter, the owner can reply saying that they want to delegate their vote to the neighbour of their choice for that meeting, or even just for one specific point on the agenda.

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