Communities of owners: Modification of the constitutive title
Further to our last article which gave some initial consideration to some of the legal aspects that are applicable to the owners of properties within communities, this week we are going to look at a more specific case involving a proposal to modify the original constitutive title to the community registered in Land Registry.
As a general rule, those agreements that imply the approval or modification of the rules established in the original constitutive title of the community require a unanimous favourable vote, both of all the owners who, at the same time, hold all the shares of ownership of the communal elements of the community. In the case that we will consider, the community was a fourfloor building with a basement that was divided into residential apartments and eight commercial premises, one of which was originally assigned the exclusive use of the rooftop terrace of the building.
A community meeting was held for the purpose of modifying the original constitutive title of the community to create a storage area on the rooftop. The owner, who had been originally assigned with the use of the rooftop, was willing to cede to the rest of the owners of the other remaining original commercial premises the exclusive right of use of the rooftop, which would become as such a communal element, with a clear indication of the corresponding areas assigned to each owner of the commercial premises, who would assume the corresponding costs of building the actual storage space. As a result of the proposal, it is clear that the exclusive use of part of a communal element would be assigned to each owner of the commercial premises.
The meeting was held and the minutes recorded that the owners present, either in person or by means of a representative, represented 60.52% of the shares of ownership of the community. And of the said owners, 3 of them, representing 40.23% of the shares of ownership voted in favour of the proposal whilst one of them, representing 20.29% of the shares of ownership, voted against the proposal.
Although the agreement to assign the use of the rooftop to the owners of the commercial premises was approved by a simple majority of the owners who attended the meeting, the registrar in Land Registry refused to register the paperwork filed to modify the original constitutive title of the community due to the absence of an unanimous agreement of all the owners and additionally due to the absence of an ex press vote in favour of the proposal of the owner who had originally been assigned the exclusive right of use of the roof terrace. The registrar’s decision was appealed against by the community of owners, and the General Directorate of Registrars and Notaries considered the appeal and eventually supported the registrar’s opinion.
The roof terrace was undoubtedly a communal element of the building and the fact that the use of the roof terrace was originally assigned to one sole owner does not change the roof terrace’s nature as a communal element. Accordingly, any alter ation of the legal status of the roof terrace implies a modification of the statutes of the community and therefore requires a unanimous favourable vote of the owners.
In addition to the first principle concerning the unanimous favourable vote, the resolution of the appeal also referred to the necessity of each individual owner who would benefit from the creation and use of the individual storage spaces created on the roof terrace giving his/ her express consent to the proposal adopted in addition to the consent of the owner who original had the sole exclusive use of the roof terrace being necessary.