Amendments to the rules on horizontal property – what has changed?
Law 8/2022 (the “Law”) was published on 10 January. This Law introduces important changes to the rules on horizontal property and to the mandatory documents that must accompany the deed or the certified private document for the sale of self-contained units.
A. MAIN CHANGES TO THE CIVIL CODE
1. Possibility to ask the courts to resolve any absence of agreement regarding the alteration of the certificate of establishment of horizontal property in relation to the common parts
Under the previous rules, the certificate of establishment of horizontal property could only be modified1 with the agreement of all the condominium owners. Through the legislative amendment introduced by Law 8/2022 , Article 1419 of the Civil Code now provides for the possibility to overcome any absence of agreement to amend the certificate of establishment before the courts, providedthat:
i) it involves a change to the common parts of the building;
ii) the votes of the condominium owners who do not approve the change are less than 1/10 of the invested capital; and
iii) the change does not modify the conditions of use, the relative value or the purpose for which the units of the condominium owners who do not approve the change are intended to be used.
2. Maintenance and use charges
The new Article 1424 of the Civil Code now expressly states that the maintenance and use of the building will be under the responsibility of the condominium owners at the time of the resolutions in question.
2.1. Common areas exclusively used by one unit
The expenses of any common areas that are exclusively used by one of the condominium owners must be paid by the condominium owners using them. However, if the state of maintenance of the common parts of the building affects the maintenance or the use of the other common parts of the building, the owner who has the exclusive use of the common parts must bear the repair expenses in the proportion of his/her co-ownership, except if the need for repair is due to his/her own fault.
2.2. Liability for charges and debts - sale of unit
Article 1424-A is added to the Civil Code and Article 54 of the Notaries’ Code is amended, regarding, respectively, the responsibility for the condominium charges and the obligation to present, in the instruments of transfer of real estate, a declaration relating to those charges2. However, the purchaser may declare that it waives the right to presentation of this declaration. Therefore, in the case of the transfer of units, the following will be required:
This not only clarifies the responsibility for the condominium charges and debts, but also introduces greater protection for the buyer, who, as a rule, will only take responsibility for charges falling due after the transfer of the unit.
3. Definition of essential and urgent repairs
Article 1427 of the Civil Code already stipulated that “any urgent and essential repairs of the common parts of the building can be done by any unit owner”. However, there was no provision as to what should be understood as essential and urgent repairs, so its implementation was always widely discussed before the courts.
The new Law introduces the following definition in Article 1427 of the Civil Code:
“Essential and urgent repairs are those necessary to eliminate, in the short term, any faults or defective conditions existing in the common parts that may, at any time, cause or aggravate damage to the building or group of buildings and to property, and or put at risk the safety of people”.
4. Condominium meeting
Article 1431 of the Civil Code now provides for the possibility to hold a meeting to discuss and approve the accounts and budget, exceptionally, in the first quarter of each year, if this possibility is provided for in the condominium regulations or results from a resolution, approved by a majority of the condominium meeting.
Article 1432 of the Civil Code provides for the possibility to convene the meeting by email, for condominium owners who declare their agreement to this and indicate the address to be recorded in the minutes.
If the number of owners required to pass the resolution does not appear upon the first call, Article 1432(4) of the Civil Code provides that if no other date is set, the meeting will be deemed to be convened for one week later, at the same time and in the place. In this case, the meeting can pass the resolution by majority vote of the owners present, provided that owners representing at least one quarter of the total value of the condominium are present.
Article 1432(4) 4 expressly states “if no other date has been set in advance” and the courts consider that a second convening notice with a mere delay of half an hour after the first one is not admissible3. However, in practice, many convening notices indicate a new meeting not for another date, but only for another time of the same day.
1 Without prejudice to any change resulting from the joining together of two or more units in the same building into a single unit, provided they are adjacent to each other. This does not require the authorisation of the other unit owners.
2 The instruments by which rights over properties are shared or transferred, or charges are incurred over them, cannot be drawn up without reference to the declaration provided for in Article 1424-A(2) of the Civil Code, without prejudice to the provisions of paragraph 3 of the same article.