18 Jul WHO CAN USE THE POOL IN MY COMMUNITY?
We entered the second half of July, and with it, the heat, the holidays and the pool. What luck who has a swimming pool in their neighborhood or urbanization, but now, what happens to the community that does not pay their community fees, can use the pool but do not pay the fees, or what happens to the owner who has rented the house to some tenants, who can use the pool of the two, can both?
In this article we intend to provide solutions to all these issues that may disturb our most coveted summer break, without forgetting that, as we always say, each situation is different from the others, and ideally before initiating any type of claim both judicial and extrajudicial, is that an expert analyze it and determine which is the most viable solution for each case.
In Navarro Llima Abogados, S.L. We have great experience in claims between comuneros, so we will be happy to study your situation.
COMMUNITY THAT DOES NOT PAY THE FEES
When there is a conflict between comuneros, it is necessary to resort to the Law of Horizontal Property, in it, the only consequence of non-payment of community fees is the deprivation of the right to vote and as the only weapon of the community the interposition of a procedure monitorio to claim amounts owed.
However, recent jurisprudence in recent years have ruled in favor of prohibiting the access of delinquent owners, what are they based on?
The only thing that can be deprived to the “delinquent” comunero is the right to vote in the owners’ meetings, and in these meetings, community agreements are adopted to prevent access to common elements to the neighbors who are not up to date with the payment. of community fees. As the “delinquent” comunero does not have the right to vote, he can not vote against it.
In this sense, the Provincial Court of Valencia in its decision on May 13, 2016 provides that these agreements are valid because “In response to the above and weighing all conflicting interests, such as the use of common elements of an accessory nature and the need to contribute to its maintenance, we believe that temporarily deprive the use of a common element of an accessory nature, such as the use of sports areas, that is, social club, gym, sauna / jacuzzi, swimming pools and paddle tennis, when there is an objective and justified cause, such as not contributing to its maintenance, due to its similarity to the cases analyzed in article 17.4 of the LPH, it can not be understood as an agreement contrary to the Law or the Statutes, but rather as an agreement that it falls within the scope of the Internal Regime Rules.
The complainant sustains his petition in which a community of owners can not adopt an agreement for depriving a commoner of the use of a common element because he is delinquent, since this violates the right to property. The law establishes the legal channels to claim the payment of the amounts owed that can never be to coerce and deprive the debtors of services that correspond to them as their owners.
The community opposes alleging that this agreement is not illegal, just as it is not to limit the use of swings due to age or not allow minors to enter the jacuzzi or close access to certain areas. The agreement is not a coercion or a pressure agreement, since the community follows the legal channels to claim the payment of the debts.
This Court considers that the plea must be rejected because, in the present case, the agreement does not entail the deprivation of the right of property but the temporary limitation of use for an objective reason, such as not contributing to the expenses that are necessary for the support of said facilities in particular and of the entire property in general. If it were an essential element for the habitability of the property or, not being so, it could not be deprived of its use, we would share the criterion of the claimant, but as it is an accessory element whose use can be limited or excluded to the comuneros who do not pay their maintenance, we consider that said agreement does not limit your property right.”
On the other hand, other judgments state that depriving the right to use the common elements is a limitation on the right to property and that therefore it would be a null agreement.
What is important, and before this there is no doubt in the jurisprudence, is the fact of how to avoid that in spite of the existence of this agreement that prevents the “delinquent” comunero from entering, enter into this common area, since we must be careful in how do you prevent it from entering the pool, because with the use of violence and / or threats it would incur a crime of coercion.
OWNER AND TENANT, WHO CAN USE THE POOL?
In this situation we have to go to the provisions of the lease signed between the owner and the tenant and the internal rules established in the statutes of the community.
The normal thing is that the owner gives the tenant the use and enjoyment of the privative and common facilities (that is to say, the house and the common zones). If this happens, the owner will NOT be able to access them because they have given their use.
If nothing is provided in the lease, the Horizontal Property Law establishes that the rented flats will have the right of co-ownership over the common services, however in the urban lease law, the parties are free to fix the conditions they prefer. provided that it does not harm the rights of the tenant, so the cession of the use of these common areas may be restricted, as it does not affect their right to use the dwelling.
Keep in mind that each house that forms a community of neighbors has a percentage of community services, which means that all apartments are owners of a certain part of them. In the event that the owner gives up the use and enjoyment of any of them, only the tenant will have the right to make use of them; while if it does not yield, the situation is the other way around. Therefore, both parties can not enjoy the services at the same time.
What happens if they deny entry to the tenant’s swimming pool while still using and sharing the common areas? They are abusing the right as owners, because they can not stop it if by contract you have the right to access these areas. In addition, we must bear in mind that, as in the previous section, we must be careful with the use of violence or intimidation, as we can commit a crime of coercion and / or threats punished in the Penal Code.
GUESTS TO THE POOL
With regard to this issue, we must go back to the statutes of the community, which as a rule that regulates the coexistence among all community members, will arrange if the entry of guests is allowed or not. Needless to say, if the entry of guests is forbidden, with the provisos that we have said previously of who is going to prevent access to it and the use of violence and intimidation, we can not invite people who are not owners.
But, what happens if it is not regulated in the bylaws? If there is no rule prohibiting the entry of guests, they can enter, always respecting the rules of use of the same and respecting the installation (making an appropriate use of it, not hampering the rights of others, causing no damage and / or damage …)
In some communities they have adopted the criterion of facilitating a certain number of passes to the comuneros so as not to overexploit the pool as well as the use thereof, but these decisions must always be reflected in the statutes or in the Boards (ordinary or extraordinary) .
The statutes of the community can be consulted in the Land Registry where the farm is registered, normally in the deed of horizontal division of the building, if the farm administrator or the president of the community does not want to provide them.
For almost all cases must be agreed by the neighbors, both in statutes and in the Boards of property or even in the lease (when a tenant intervened) which causes problems and compliance disputes arise since these agreements do not have the effectiveness of a law and therefore their ability to demand compliance (can not sue for it, call the police or enforce compliance) but must be respected to maintain a peaceful coexistence between all the neighbours. If you are having a problem in your community do not hesitate to call us and we will offer you solutions that others do not see offering you the best resources for your specific situation.
Navarro Llima Abogados, S.L.