Reader’s questions in response to the “Internal (Private) Roads & Community of Owners, Camposol – Q&A” posting:-
Q – What happens if an owner does not or refuses to pay the community fees?
A – It should be remembered that once the community fees are agreed at an AGM they are legally binding through the Horizontal Property Act, all owners are liable this includes banks, liquidation agents etc, the consequences of non-payment are the same as defaulting on any legally enforceable utility (Electricity, Water etc), ongoing default could result in interest being accrued on the outstanding amount, further default would risk an embargo (lien or charge) on the property, in extreme cases continued refusal to pay could result in application through the Courts for the public auction of the property involved and all fees, costs and commissions recovered from the proceedings of the auction, even if the property is sold by the owner the Community is still able to claim up to 3 years arrears from the sale procedure, other avenues are also available to the community such as an application to cut off water and/or electricity, all such sanctions are set out in the Horizontal Law of property.
Q – How can payment of community fees be obtained from abandoned or never lived in properties?
A – All properties have an owner(s) whether it is private individual(s), a company, bank in the case of repossession or bankruptcy receiver, all are liable for community fees, the Community Administrator can obtain the owners details by acquiring a “Nota Simple” (Property Report) from the Mazarrón Registro de la Propiedad (Register of Property Owners).
Q – Can a Community of Owners take any action against properties or gardens that are in a state of disrepair?
A – If approved by the Community of Owners AGM or EGM a bylaw can be entered where an offending property owner is notified that if the situation is not rectified within a stipulated period of time, the community administrator will appoint contractors to carry out the work and the resulting expenditure invoiced to the property in question.
Q – Why was there no mention of Community of Owners when we bought the property?
This maybe a cultural anomaly, although not as common in the UK, in Spain along with most of Western Europe and North America Communities are the norm and property buyers expect to be part of one when purchasing in a new or relatively new multi dwelling development and the community fees are part of normal household overheads like water, electricity, council tax bills etc, it seems in the early days of Camposol, some buyers were told that payment into a local fund would be due, but this came to be regarded as a negative sales point and not broached unless queried by the potential buyer and even then there are Local and area Estate agents who bear some responsibility in not being totally honest with purchasers regarding Community of Owners. They divulge little if anything regarding this issue. Preferring to hide behind the fact that the contract they offer is between buyer and seller. Caveat Emptor.
Internal (Private) Roads & Community of Owners, Camposol – Q&A
Q – What are “Private” Roads?
A – Camposol was planned and constructed along with thousands of other urbanisations in Spain according to the Horizontal Property Act where the developer planned the urbanisation in parcels or poligonos consisting of groups of houses numbering from around a dozen to over 200 properties depending on individual plot sizes and shapes, to attain planning approval the developer has to construct public road access to and around the perimeter of these groups of houses or poligono’s, these access/perimeter roads become the property and responsibility of Mazarrón Council, the roads inside the group or poligono being internal roads are classed under the Property Act as private and are the communal property and responsibility of all the property owners in the Poligono, these would be managed and funded by a Community of Owners.
Q – What is a Community of owners?
A – A Community of Owners (Comunidad de Propietarios) is the means by which the internal roads and communal elements of each poligono are illuminated, maintained, cleaned, repaired etc. in Camposol’s case this would usually consist of the internal roads, lighting, service supplies and insurance, although some poligonos have communal swimming pools and terraced areas.
Q – Do all poligono’s in Camposol have internal (private) roads?
A – Apart from 6 or 7 poligonos on A sector who because of the number of houses and size of poligono don’t need internal roads, yes all the developed poligonos have at least one internal road.
Q – Can the poligono layouts and sizes be changed so there are no internal roads?
A – No, the submitted plans would have had to comply with the Act and once approved by municipal and regional authorities and registered as constructed by the developer the project is finished and cannot be modified.
Q – Why is it necessary to have a Community of owners?
A – It is the law of the land and referenced in each property Escritura (Deeds) although no two escrituras are the same all will mention that the buyer declares that they have knowledge and accept the rules/statues of the Community of Owners, there is also mention of the “division horizontal” which refers to the format of the Master Deed that lays out the legal situation of each poligono and is registered with the Mazarrón Registro de la Propiedad (Register of Property Owners), signing the Escritura confirms you are accepting the contents of the individual deeds and the Master Deeds (Escritura de obras nueva y division horizontal).
Q – What have I signed for in agreeing to the Master Deeds?
A – The “Escritura de obras nueva y division horizontal” (Master Deeds) vary as with individual deeds, but lay down the obligations of each property owner, the usual format is a breakdown of each individual plot size/position and it’s pro rata (cuota) contribution to the funding of the poligono Community’s expenditure and a description of the internal and communal elements here is a translated example of relevant excerpts from a Camposol Master deed:-
“The total area occupied by the plots described is twenty-six thousand nine hundred thirty-four square metres, the interior roads that cross the entire poligono from East to West occupying an area of two thousand five hundred and forty-six square metres”
“All owners will contribute in the form and proportion determined, to the common expenses for the conservation, ordinary and extraordinary repair, administration and maintenance of the poligono
As for the common elements, the following are listed among others: the street lamps, traffic signs, general and common water installations, electricity and telephone installations, including above ground and underground accessory elements and whatever is necessary for the common use and use of the owners and those that may be established or promoted in the future and in general all supply networks: on the surface, the air and underground accessing private, individual and exclusive properties, corresponds only and respectively to them, so that they can be effected.”
Q – Do the internal roads have to be completed before homeowners become responsible for them?
A – No, the internal roads and communal elements and installations became the responsibility of the poligono homeowners and potential homeowners when the first home owner on each poligono took possession of their property from the developer, the usual procedure would have been for the Community of Owners for each poligono referred to in the individual property deeds to have been formalised and initiated as the communal roads and elements came into use, failure to complete the internal roads and installations would be a breach of contract between the property purchasers and developer and could have been actionable by individual purchasers or the Community of Owners.
Q – Are homeowners compelled to initiate their Community of Owners?
A – If every homeowner within a poligono does not wish to initiate the Community of Owners it is their choice, but they cannot expect street lighting, cleaning services, maintenance/repair etc unless it is paid for privately, another important element of a Community of owners is insurance against damage and/or personal injury, without this all homeowners within the poligono would be liable for any incident in the communal roads/areas, there is also the case that without cleaning and maintenance the poligono will slowly deteriorate which could adversely affect property values.
Q – How does a person create a Community of owners?
A – The Community of Owners for each poligono is already created as described in the Master deeds, to initiate its function only requires a single or group of owners to call the first AGM (Annual General Meeting), although in practice an Administrador De Fincas (Property Administrator) would be usually be approached to organise the legalities.
Q – Is it expensive?
A – As most Camposol poligonos only have roads and water/electric/telephone services to provide for the cost is relatively inexpensive compared to some developments with more facilities (communal swimming pools, gardens, sports facilities etc), quotes have been provided by Property administrators of between 10 and 20 euros per property per month after an initial setting up fee of approx. 100 euros per property, obviously if owners were able and wanted to self-administrate the cost would be reduced .
Q – As Mazarrón Council dismissed Justo y Manoli (MASA) as developer in 2011 the Council should finish the construction of the private roads?
A – The developer MASA had already abandoned the site when the Council dismissed them as developer, the private roads are internal elements of poligonos and as such are included in the deeds of each individual escritura, Mazarrón Council’s contract with MASA was for the construction of the public roads only, individual property purchasers had no contract either directly or indirectly
with the Council for the construction or completion of private roads this was a breach of contract between the house purchasers and the vendor (MASA).
Q – In 2011 it was also said that the “Entity” was being removed by Mazarrón Council does that mean the Community of Owners have been removed?
A – No, a Community of Owners covers communal facilities that are wholly owned by the Community members, the Council has no jurisdiction over a Community of Owners, an Entity whether it is a Conservation Entity or a Collaboration Entity would be used to manage and/or fund facilities that were fully or partially owned by a third party, parks, gardens, sports facilities etc, the third party would usually be a local Council who could collect any funds in addition to IBI and control the entities management. Mazarrón Council do not have any Entity arrangements in Camposol all municipal facilities are funded and managed fully by the Council.
These Q&As have been compiled after researching individual and master deeds and consultation with a lawyer and property administrator, if you have a question please send it using the “Contact Us” section and we will endeavour to supply an answer.