How many homeowners have ever dreamed of the idea of prohibiting the neighbour who has stopped paying their 'comunidad' community fees from entering the pool? A ruling by the Provincial Court of Valencia allows this deprivation of rights. The Horizontal Property Law, however, and most of the rulings do not provide for this prohibition.
In Spain, whether you live in an urbanización private housing estate or an apartment building, it is very common to pay communal fees for shared services like cleaning costs, maintenance, security and, of course, the swimming pool. So what happens if one person stops paying their community fees?
María José Polo Portilla, director of the legal blog Sepín Propiedad Horizontal, points out that the ruling of the Valencia Provincial Court of 13th May 2016 allows this deprivation of the right to use the swimming pool by establishing that prohibiting the use of common elements, such as swimming pools, gymnasiums or tennis courts, is not contrary to the Law or the Statutes, but rather falls within the scope of the Internal Rules of Procedure.
Even so, Polo Portilla believes that the Community of owners cannot prohibit the use of a common service to anyone, nor can it in any way sanction those who don’t pay. Several judgments point in the same direction, such as that of the Provincial Court of Alicante from 21st March 2013, or that of the Provincial Court of Huelva from 2nd December 2011. His three-pronged argument is as follows:
- The so-called Horizontal Property Law (Ley de Propiedad Horizontal or LPH), which outlines the rules of the property only provides for two sanctions for delinquent persons: the deprivation of the right to vote on community issues and the possibility of objection, unless they pay or are legally charged.
- The ruling of the Valencian court also considers the registered statutory clause that prevents the defaulting neighbour from having access to common elements to be legal. However, the lawyer reminds that, if this prohibition is to be inscribed in the Statutes, it will be necessary to modify them and for this to happen, the unanimous agreement of all the neighbours is necessary (art. 17.6 of the LPH). Since the defaulting neighbour cannot be deprived of a vote in this case, unanimity can never be obtained.
- Finally, it is difficult for neighbours to make the deprivation of use of the swimming pool or other shared facility effective. How are you going to foce your neighbour out – physically or by your power of persuasion?
In addition to all this, Sepín reminds that the defaulting owner can claim compensation for any damages that may have been incurred, as established in the judgement of the Provincial Court of Alicante of 26th October 2009.
In the end, then, and unfortunately, no agreement of the Board of Owners where you live can prohibit entry to the pool of a neighbour who doesn’t pay their community costs, nor to any other communal part of the grounds. "The only way to collect the outstanding payments is to use the channels of the Horizontal Property Law against the property owner, never against a tenant or other occupier, by means of the judicial claim provided for in article 21 of the law," says lawyer María José Polo.
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