The Communities of Owners may need financing, not for their current expenses, but to assume works of conservation, reform or improvement of the building, such as rehabilitation of facades and roofs, installation of elevators, expansion of garages and gardens...
The cost of these services is very difficult to be met from current income and/or existing funds, and less if they must be paid in cash, with which the communities of owners must finance themselves and for which they have of the following options:
1.- Approve a spill. This is financed by the owners themselves.
2.- Arrange a postponement and installment of the payment with the supplying companies, which may lead to a temporary increase in the community fees. That is, finance themselves at the expense of suppliers.
3.- Go to bank financing.
This possibility is relatively recent, because the communities of owners do not have legal personality, even when in some cases they act with the appearance of having it, and thus there have never been problems to recognize that they are holders of bank accounts, subject to municipal taxes, of tax obligations, or for their recognition to sue and be sued, etc., but except for these exceptional cases, they cannot be holders of rights and obligations.
The consequence of this, until 2011, as we will see below, is that if the community of owners wanted to arrange some type of bank financing, it had to be through the signature of their owners, who were required to be responsible solidarity for the entire debt, which implied that in the event of non-payment by one neighbor, another could respond.
This situation changes with Royal Decree-Law 8/2011, of July 1, on support measures for mortgage debtors, which introduced an important novelty by attributing to homeowners' associations the power to “act in the real estate market with full legal capacity for all operations, including credit, related to the fulfillment of the duties of conservation, improvement and regeneration, as well as the participation in the execution of isolated or joint, continuous or discontinuous actions, which correspond”.
This provision was repealed by article 15 of Law 8/2013, of June 26, on urban rehabilitation, regeneration and renewal, whose content was assumed by article 9 of Legislative Decree 7/2015, of October 30, by the that the consolidated text of the Land and Urban Rehabilitation Law is approved, which tells us that a) communities and groups of communities of owners, may, according to their own nature: a) Act in the real estate market with full legal capacity for all operations, including credit, related to compliance with the duty of conservation.
It seems that on the way from one provision to another, the financing of the Communities of Owners is limited, only for conservation works.
Based on this regulation, the president of the community of owners can request a loan on behalf of the community without the signature of all the co-owners being necessary, provided that he is covered by an agreement of the Community of Owners Board, adopted with the requirements established by the Horizontal Property Law, in my opinion depending on the type of agreement to adopt, since the financing is a complementary agreement of the same.
For its part, the Bank will grant the financing once it has analyzed the payment capacity, examining the flow of income and expenses of the community.
4.- Lastly, I would cite a mixed formula, which has been raised as a consultation in my office, which is the arrangement of financing by the company supplying the service, fixing quotas, and simultaneously an assignment of the credit in favor of of a financial entity that is the one that assumes the risk of the operation, in exchange, obviously, for a discount.
These operations may seem somewhat more opaque, but they do not have a very different nature from the previous one, although it would be necessary to consider in the contracts that are signed, the consequences that non-compliance by the supplier company could have on the assignment of the credit. , so as not to find ourselves in cases, such as those that appear in the press from time to time, related to the financing of related services
THE PROBLEM OF NON-PAYMENTS.
The financing of communities of owners, faced with a non-payment problem, must be analyzed from a double point of view.
If the financing is its own, in the event of non-payment by an owner, of the spillovers or of the agreed amounts, the community of owners may act against it, through the procedure of article 21 LPH and that is developed through the following scheme:
1.- Meeting Agreement approving the liquidation of the debt with the community of owners and the exercise of judicial actions.
2.- Notification of the amount owed to the delinquent owner.
3.- And Submission of a claim, through the channel of the order for payment procedure, with the documentation proving compliance with the aforementioned requirements.
If there is external financing, and specifying the same in the bank, in case of non-payment by the Community, article 22 of the Horizontal Property Law will come into play, which establishes that “The community of owners will respond for its debts to third parties with all the funds and credits in its favor. Subsidiarily and prior to the payment request to the respective owner, the creditor may proceed against each owner who has been a party to the corresponding process for the share that corresponds to him in the unsatisfied amount.
Therefore, in case of non-payment, the Bank may:
a.- Urge the claim of the amount owed exclusively to the Community, in which case only the Community will respond, immediately, with its funds and credits.
In the event that the Community's assets were not sufficient to satisfy the amount owed, the Community of Owners must meet in Meeting and determine the proportional amount of the amount of the sentence to be satisfied by each of the co-owners (in proportion to their co-ownership quotas – article 21 LPH), this being the moment from which the debt of each one of the co-owners will be generated before the Community.
If a Board is not convened to determine the proportional amount of the sentence to be satisfied by each of the co-owners, or they do not proceed to pay the amount determined at said Board, the creditor may judicially replace the action of the Board (that is, the determination of the contribution of each of the co-owners and/or the claim to each of the co-owners for the payment of said contribution, as the case may be), without diminishing the procedural guarantees, that is, calling personally as a party in the legal proceedings to each of the owners whose assets are pursued (vid. RDGRN of June 30, 1986).
b.- Urge the claim of the amount owed to the Community and, secondarily, the individual claim to the co-owners in proportion to their quotas. In this case, the condemnatory sentence that is handed down must be executed directly against the assets of the aforementioned Community, and, in the event that these are not sufficient to satisfy the payment of the debt, against the assets of the defendant co-owners. , in proportion to their quotas.
The requirements for this are the following:
a.- That prior to the filing of the claim against the co-owners, a request for payment of the proportional part of the amount owed is addressed to each co-owner, only those co-owners who do not respond to this requirement by paying the required amount being liable to be sued ;
b.- That the claim be subsidiarily directed against each of the co-owners who have not paid the corresponding amount after receiving the creditor's request, citing them individually and not as a group.
In any case, according to the implicit derivations of art. 22 LPH, it seems indisputable that in order to execute the conviction immediately, although in a subsidiary manner to the execution against the Community, against each of the co-owners in proportion to their quotas, they must have been part of the corresponding process. .
Font used. Delinquent communities: how to proceed in the event of non-payment. By Carolina Otano.
