Neighborhood communities may temporarily deprive delinquent owners of the use of common facilities that are not considered essential, such as swimming pools, gyms or gardens. This is established by Law 10/2022, of June 14, on urgent measures to promote building rehabilitation activity, recently published in the Official State Gazette (BOE). The bulk of the regulations revolve around aid and tax deductions designed to encourage interventions. However, small modifications are also included in the Horizontal Property Law that give the communities greater legal personality and the ability to act against delinquency.
Among the main changes, explains Alejandro Fuentes-Lojo, an expert lawyer in real estate law, “the communities are given the capacity to sanction so that they can act against the defaulter by depriving him of the use of non-essential common facilities and elements, normally destined for leisure and entertainment. playtime”.
According to the regulations, this temporary deprivation may not be “abusive” or “disproportionate”. Nor may it affect the habitability of the property. In other words, explains Fuentes-Lojo, swimming pools, parks and common gardens can foreseeably enter the group of vetoes, but not other elements such as the elevator.
The regulation, in turn, allows the community of owners to agree on other dissuasive measures against delinquency, “such as the establishment of interests higher than the legal interest,” the text details. Thus, credits in favor of the community will accrue interest from the moment in which the corresponding payment must be made and it is not made effective. A prior requirement will not be necessary, as is the case now, emphasizes Fuentes-Lojo. Until now, these interests claimed by the communities are usually subject to regulators and official bodies.
However, the BOE collects, both the deprivation of common elements and the establishment of economic interests may not be retroactive in any case and must be included in the statutes.
In Fuentes-Lojo’s opinion, the text is “controversial” because the community is given a sanctioning capacity that does not correspond to it. “It is risky from legal security because it can lead to abuses of power.” Among the doubts, the lawyer points out that the wording does not make it clear what majority of neighbors is necessary for the adoption of agreements of this nature. It is also not known how much interest can rise. “We still lack jurisprudence in this regard.”
Along the same lines is Rafael del Olmo Garrudo, member of the Legislation Commission of the General Council of Associations of Property Administrators. “The reform is in line with what administrators demand to fight against delinquency, but it lacks specificity”. In your case, one of the biggest doubts will be to establish what is considered an essential common service. He gives as an example the case of someone who, for medical reasons, has to use sports facilities or the swimming pool. The text also leaves up in the air when these changes may be included in the statutes, for which unanimity is required. “It is obvious that the defaulter is not going to vote against his interests.” For this reason, he adds, it seems that the door is left open so that these details can only appear in the original statutes, drawn up by the promoter.
The regulatory changes included in the law published in the BOE also include certain modifications in the regime of the communities of owners to grant them greater legal personality and, consequently, more ease to be able to function when undertaking rehabilitation works and request financing. necessary.
Specifically, as detailed in the text, a simple majority system is established to decide whether to undertake energy rehabilitation works, which will largely be covered by European funds, as well as to request aid and financing for their development.
This regulatory change will only be applicable to interventions that contribute to improving the energy efficiency of the building or the implementation of renewable energy sources for common use. For this reason, it is also established that the cost of these actions, or the payment of the amounts necessary to cover the loans or financing that has been granted, will be considered general expenses.
The reason behind this modification, as is the case with the actions against delinquency, is found in the impulse that the Government wants to give to residential rehabilitation that aims to modernize the Spanish housing stock. On the one hand, explains Fuentes-Lojo, the aim is to provide communities with more facilities when it comes to accessing credit. On the other hand, delinquency is penalized more strongly to prevent delays in payments from torpedoing the great rehabilitation project.
The plan agreed between the Executive and the European Commission establishes three types of deductions and aid, two designed for private homes and another designed directly for interventions in entire residential buildings.
Those related to housing may benefit from a deduction of up to 40%, with aid of up to 7,500 euros per year, always depending on the energy savings achieved. In the case of the entire buildings, a deduction of 60% is reached and a maximum of 15,000 euros in aid.