Com­mu­ni­ties of own­ers: Mod­i­fi­ca­tion of the con­sti­tu­tive ti­tle

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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.

Le­gal and Tax ad­vice from Fer­nando Aliaga

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