Exemption from fees in the Communities of Owners

Welcome to Southern and to a new article in our blog. Undoubtedly an always controversial topic is the exemption of fees in the communities of owners, what reasons can drive this exemption of fees, how to take this agreement within the communities of owners? Let's take a closer look at this issue.

What is a fee waiver in a homeowners' association?

The timely payment of each of the community fees is very important to allow the maintenance and upkeep of the community to be carried out in the best possible conditions.

Normally, the manner in which contributions are to be made is determined by the coefficients of participation held by each member in the articles of association or in the articles of association.

It is obvious that each community of neighbours is different and works in a different way. Therefore, and depending on the constitution and configuration of the community, it is possible that there may be doubts as to whether, for example, commercial premises and dwellings with an entrance from the street are obliged to contribute to the general expenses in the same way as the rest of the units.

In this blog post we will analyse the exemption of fees in the communities of neighbours as reflected in art. 9 e) of the Spanish Law. Horizontal Property Law:

it is the obligation of all the owners to contribute, in accordance with the participation quota established in the deed or as specially established, to the general expenses for the proper maintenance of the property, its services, charges and responsibilities that are not susceptible to individualisation.

art. 9 e) of the Horizontal Property Law

Therefore, the exemption from the payment of fees in homeowners' associations would be an exception to this article.

Exemption from fees in homeowners' associations: Cases

As we have just seen, and also in other cases, a residents' association can establish the exemption from payment of some part/s of the fees by means of 3 instruments:

- Agree to include it in the articles of association.

- Incorporate this possibility in the community statutes.

- Approve a specific exemption in a meeting of owners properly coordinated by the property management and always unanimously.

If this exemption of expenses is approved, the owners who are exempted will be released from the obligations to pay the fees corresponding to ordinary expenses (maintenance and conservation) and extraordinary expenses (replacement and repairs).

Examples of fee waivers.

- Commercial premises and ground floor. With a direct external entrance from the street. These units may be exempt from ordinary and extraordinary fees related to the use and maintenance of lifts, cleaning of stairs and others.

However, even if they have a general fee exemption, if the installation of a lift or a stair lift is agreed, they will have to participate in the payment of the lift or stair lift because it is an improvement and upgrade of the building.

- The same applies, even if they do not make use of them, in the case of gardens and common areas that the community has. They can always request and obtain a fee exemption through the 3 mechanisms we have indicated in previous paragraphs.

Are there any reasons to stop paying in the homeowners' association?

A good property administrator will notify you that there are no other reasons for you to stop paying the fees, except for the exemption stated in the statutes, the constitutive title or the one unanimously approved by the neighbours' meeting.

Regardless of the use you make of the common areas, the quality of the management of the common areas, the occupancy you make of your residence and other more or less subjective reasons, the most common way to share out the payment of expenses is through the participation factor, although there are alternative options such as equal sharing, for example.

Neighbourhood debtors? What can be done

According to article nine of the Horizontal Property Law, it is the obligation of each and every one of the owners to pay the community expenses that are necessary for the proper maintenance of the property. However, it is not unusual to see how certain neighbours try to evade this obligation by offering different kinds of apologies.

If your community is in this situation, it is a good idea to notify each other of the rights and obligations of each party, and discuss possible steps to take to demand outstanding payments from the defaulting owners.

Regardless of the status of the residence (rented, vacant, occupied, etc.), the owner is always and in all circumstances responsible for the payment of the fees. For this reason, it is only against the owner that legal action can be taken.

An initial measure you can take is to deprive him of his right to vote. The Horizontal Property Law includes this possibility from the first delay. However, it is convenient to clarify that the disenfranchisement does not prohibit you from participating in the assemblies with your opinion and suggestions.

At what point does the administrator of the property advise to consult a lawyer?

The next step in demanding payment of the outstanding fees from a debtor neighbour is the judicial process. This process can be initiated in 2 different ways: when the neighbour contests the debt in court or when the community considers that it is the right time to denounce the debt.

The law does not contemplate a minimum amount of outstanding dues to denounce a debtor neighbour, but the feet on the ground advises to wait until the amount claimed compensates a process. Once the resolution is taken, it should be approved in a meeting following the next steps:

- Convene a meeting of each and every owner (including debtors) through the procedure indicated in the Horizontal Property Law.

- The agenda must be attached to the notice of meeting, where the intention to start with the claiming of outstanding dues must be communicated, which must be included in detail.

- The judicial claim must be approved by a simple majority, as must the appointment of those who are to take charge of the process.

- The resolutions adopted will be included in the minutes with the rest of the agreements, and will also be signed by the chairman and the secretary. These minutes will later be sent to each and every owner.

- Make sure that the calculation of the instalments is correct and who the debt holder is.

- Demand outstanding payment by means of a burofax within a reasonable period of time.

- Issuance of a certificate on the agreement of the meeting approving the settlement of the debt.

- Drafting and filing of the lawsuit in court.

Now that you know the reasons why an owner is exempted from paying the fees, and what is the procedure to sue for the debts, you will be able to assist your community of owners to know what to do in these cases. Having the appropriate consultancy will facilitate the whole process and will favour the agreement between neighbours at the moment of taking a resolution.