defaulters

Friday in mid-July. Any city in Spain. Five in the afternoon. The thermometer around 35ºC and there is no way to cool off at home, so you decide to put on your swimsuit, throw a towel over your shoulder and go down to the community pool, where some neighbors have been soaking for hours. Everything is going great until suddenly your expression goes wrong. To you and the rest of those present. The first defaulter who has not paid his installments for several months has just crossed the fence. Can it be there? Do you have the right to enjoy the pool despite your debt? Of swimming pools and defaulters. In 2015, the General Council of Associations of Property Administrators surveyed the financial health of the communities of property owners in Spain and found that a percentage more than respectable (42.8%) had at least one neighbor who was not up to date with their payments. Since then it is very likely that the ‘picture’ has changed, but that does not mean that the communities have been freed from the scourge of non-payments. weigh all the resources that neighborhood associations have to combat them, there are still people who do not meet their quotas. And that in summer leaves a thorny question: Can the rest of the owners veto access to the pool for those defaulters? It is not a minor issue. A Google search arrives to verify that it is a doubt that arises frequently in agencies. The ‘bible’ of the communities. When it comes to housing blocks and neighborhood coexistence, there is a ‘bible’ of reference: the Horizontal Property Law (LPH). It contains rights, duties and, in general, the legislative framework to which neighborhood communities must adhere. Also in cases of non-payment. In fact, the standard dedicates an entire section (article 21) to defining the “preventive measures” that property owners can apply to deal with defaulters. “The owners’ meeting may agree on dissuasive measures against late payment for the time in which said situation remains, such as the establishment of interests higher than the legal interest or the temporary deprivation of the use of services or facilities, provided that they cannot be considered abusive or disproportionate or that affect the habitability of the properties,” states the first point of article 21 of the LPH. “These measures may in no case be retroactive and may be included in the statutes.” Doesn’t it say anything about swimming pools? Not specifically. Just as it does not do so with other community facilities that exist in some buildings, such as gyms or tennis and paddle tennis courts. However, in that article the LPH slips a few key ideas. The main one is that it recognizes that neighboring communities can adopt certain “deterrent measures.” The second, that these do not have carte blanche. There are certain limitations that should never be skipped. To begin with, the LPH always talks about “agreements”, not improvised prohibitions. It may seem like an unimportant detail, but it is not. It is not enough for the administrator, president or any other neighbor to decide to punish a defaulter for not being up to date with his payments. Any “deterrent measure” must have the support of the homeowners’ association. The LPH even slips the possibility of addressing the issue directly in the statutes and rules of coexistence. “Abusive and disproportionate”. The law adds another important nuance. The board can vote on “deterrent measures,” true; but these have red lines. They cannot be extended beyond the duration of the debt and must not make the defaulter’s stay in the building unviable, something that could happen if the board insists on prohibiting the use of elevators, stairs and landings. The Horizontal Property Law is very clear in this regard, it explicitly speaks of “temporary deprivation of the use of services or facilities, provided that they cannot be considered abusive or disproportionate or that they affect habitability.” Does that affect swimming pools? Good question. Difficult answer. Can it be considered “disproportionate” to prevent a neighbor who is not up to date with spills from taking a dip? In general, managers recognize that vetoing common areas is “a controversial issue”. In fact, the photo can change from one case to another, depending on whether or not the matter is regulated in the statutes. “If it is not provided for in the statutes, the case must always be studied individually. The deprivation of rights must be interpreted restrictively and the aforementioned LPH only indicates two sanctions for defaulters: deprivation of the vote and the possibility of challenge,” slide from a consultancy in Castellón, which also reminds us how difficult it is to translate such a veto into practice. Who and how can prevent a neighbor from getting into the pool? Are the rest of the owners going to do it? Do you have power a watchman to do something like that? Reviewing the jurisprudence. Although not all judicial pronouncements point in exactly the same direction, there are rulings that support communities in favor of vetoing swimming pools for defaulters. The most cited case is a failure published by the Provincial Court of Valencia in May 2016, which concludes that depriving the temporary enjoyment of “an element of a temporary nature”, such as the sports facilities of the property, “cannot be understood as an agreement contrary to the Law or the statutes, but as an agreement that remains within the scope of the internal regime rules.” Images | Nick Page (Unsplash) and Brandon Hoogenboom (Unsplash) In Xataka | This summer you might find someone shitting in the pool. It has already happened in 300 Spanish swimming pools