Differences between exclusive rights over the apartments and rights over buildings

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Please, explain briefly but as clearly as possible the scope of the rights relating (exclusively) to the apartments and the ones relating to the building or to the communal elements owned jointly.

Rights of the owner of a flat or premises in condominium comprise A) the exclusive ownership on the flat or premises; and B) co-ownership on the communal elements, belongings and common services with other owners of flats or premises.

In the co-ownership, every flat or premises will have a participation quota or share according to the property total value (in percent). This quota — also formally relevant from the LR system point of view— will be used to determine proportionally the participation in duties and benefits at the risk of the community.

A) With respect to the flat or apartment, each proprietor can freely exercise his right but he must do it within certain limits:

  •  It’s not allowed to separate the elements which integrate it. This restriction concerns not only to architectural elements and facilities of all kinds of the flat but also other elements, annexes, such as garages or storage rooms as long as they are attached to the flat. Unless all proprietors in legal meeting (board of proprietors, junta de propietarios) authorise it (unanimously), neither portions nor annexes of a flat shall be able to be sold or encumbered separately from the flat they depend on. And apart from that authorisation, certain formal requirements shall have to be fulfilled.
  • Moreover, owners shouldn’t alter their exclusive properties (flats) if this alteration involves changes in communal elements. Owners’ unilateral acts mustn’t affect obligations imposed by this regime of property either.

B) Rights stemming from the co-ownership shall be exercised jointly the other owners. In a general rule, all acts related on the communal elements must be carried out by all owners, i.e. unanimously.

To get an idea about communal elements in Spanish Condominium, we might have a look to Spanish Civil Code.

Article 396 —above mentioned— refers to inherent co-ownership right over the communal elements of the building, which are all those necessary for its suitable use and enjoyment, such as the land, surface, foundations and roofs; structural elements, among them pillars, beams, frameworks and load-bearing walls; façades, with the external adornments of terraces, balconies and windows, including their look or configuration, the closing elements which form them and their external coatings; the foyer, stairs, caretaker’s cubicles, corridors, passageways, walls, pits, yards, wells and the spaces destined for lift shafts, tanks, meters, telephone or other communal services or facilities, even those which should be of exclusive use; lifts and facilities, conduits and pipes for drainage purposes and for the supply of water, gas or electricity, even for solar energy; and for hot water, heating, air conditioning, ventilation or smoke extraction; for fire detection and prevention purposes; for entry-phones and other security facilities of the buildings, and shared aerials and other facilities for audiovisual or telecommunications services, until they reach private spaces; easements and any other material or legal elements which are indivisible as a result of their nature or destination.

By exception, some matters are excluded from the rule of unanimity. So happens in cases of establishment or suppression of elevator, porter, front desk, surveillance, or services whose goal is the suppression of architectural barriers which hinder the access or disabled people’s mobility. Then, agreement of the board of proprietors must be adopted by a large majority but not by unanimity.

As Code Civil and Act 21/1960 establish, the division action (action communi dividundo of classic Roman Law) will not proceed to cease the situation that regulates this Law.

Finally, we remark that actually new proprietors of a flat in Condominium are bound by general rules or statutes as soon as they buy the flat. Possible objections to it are not relevant. New proprietors are also responsible (to a limited extent) of that debt stemming from the common expenses which the former proprietor (their seller) hadn’t paid for.

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