How Catalan legislator protects owners' community in front of non payment risk?

Today we will answer how to avoid that non-payments threaten the Owners' Community economic sustainability ?  

Introduction: the Comunity fee payment in the community of owners: why, by whom and when 

a) Why is the Community fee to be paid?

From an individual point of view: the fee is the entrance door to be able to benefit from the common elements (elevator, swimming pool, garden, etc.) and to enjoy all the rights of the Community of Owners Meeting.

From the community point of view: it supposes to be able to face many actions. At this point, it is useful to think about what would happen if nobody paid? Well, it would be impossible to undertake any type of action in the Community, not even the vital works for the security of the building. 

With regard to the hypothetical not realization of this type of works our Facility Manager reminds that: not to make structural state building reviews of the Owners' Community nor works of maintenance that derive is a serious danger for the persons. In the article 553-44 the Catalan Civil Code (hereinafter CCC) is clear: 'the community has to conserve the common elements of the building, so that it fulfills the structural conditions, of habitability, of accessibility, of watertightness and of security demandable according to the in force regulation (...)'.

From a legal point of view: the quota must be paid.

b) Who has to make the payment?

The natural persons or companies owners of a real estate property in the community - whether they live or not in the building-. 

c) Where does the date of payment of the quota appear?

Normally, in the community statutes or in the minutes of the owners' meeting. However, sometimes, neither the statutes nor the meeting fix the time of payment. It is therefore essential to know exactly when is the bill deadline.

First part: how does the Catalan legislator protect the Community of owners before the non-payment risk?

Once understood all that surrounds the quota we give the word to our administrator Tito Perez. Our approach is based on the Catalan Civil Code that is the exclusive norm in force in Catalonia. 

First of all, the legislator wants to make clear the union of obligations between all the co-owners. We analyze how it does it: 

Joint ownership of credits and debts between all the co-owners: art. 553-4 CCC established it.  I believe that this decision was totally right given that the Community of Owners does not have legal personality. Secondly, it is established the obligation that exists a reserve fund equivalent to 5% of the common expenses (art. 553-6 CCC). 

The protection mechanisms of the Owners' Community regulated by the Catalan legislator are three: preference of the credits, simplification of the requirements of presentation of the request for payment order and the real affectation of the unpaid quotas in relation to the privative element.

a) Preference of the credits: in paragraph 3 of the article 553-4 of the CCC establishes that the credits of the Community against the owners by common expenses, ordinary and extraordinary, corresponding to the expired part of the current year and the four immediately previous ones have preference of collection on the privative elements doing here a clear remission to the state right like supplementary right (art. 149.3 CE).

b) Simplification of the requirements of presentation of the request for payment order: also in a very successful way to art. 553-47 CCC expressly indicates the possibility of using a certificate issued by the Secretary-administrator.

c) Real affectation of the unpaid quotas in relation to the privative element: it is about the reinforcement of the position of the Community through the regulation of the real affectation.

The legislator establishes two additional passive protections against non-payment:

- It has been many years since the debtor loses his right to vote at the Meeting (art. 553-21CCC). It should be noted that, exceptionally, it may be allowed on condition that the outstanding amounts have been judicially or notarially deposited or the agreement has been challenged.

- Recently, the law 10/2022, allows the debtor owner to be deprived of access to non-essential common facilities, for example, the swimming pool. 

Part two: the importance of ensuring that all owners are surely informed about the meeting

The legal way to initiate a claim for an amount owed is to carry it out within the framework of the Owners' Meeting.

a) To summon the Meeting: it is essential to ensure unequivocally that all property owners are aware of the summons.

The channels to do it are: by post - certified or not - we recommend to deliver it by hand because there is no possible confusion about the reception, burofax, e-mail or a notice on the board of the Community of Proprietors.

Attention, in the case of e-mail this can be relegated to the spam folder. As far as the board is concerned, since looking at it is a personal act, we cannot be sure that everyone does it. 

b) Introduce an item on the agenda regarding the debt claim: "liquidation of debts of owners of the owners' community" would be a clear name.

At the end of the Meeting, this item will be recorded in the minutes. It is the minutes that give legal validity to the debt claim. By the way, the publication of the names of the defaulters is only legal, but only under certain conditions explained in this link.

Let's hope that we have solved the doubts about the delinquency. In any case, our administrators are always at your disposal.