The responsibility for damages of the Community of owners
There are numerous matters that reach the Civil Law departmentin relation to the responsibility of the Communities of Owners, so in this publication I am going to make a concise outline of their obligations, origin and limits.
Before delving into the substance, clarify that the Communities of Owners can incur both contractual and non-contractual liability, either against their own community members or against third parties.
Art. 10 a) of the Law 49/1960, of July 21, on Horizontal Property establishes that for the Community of Owners they are mandatory and, therefore, they must assume, without the need for prior agreement of the Board and without affect who the applicant is, among others, the following actions:
- The works and works that are necessary for the proper maintenance of common services and facilities.
- The works and actions that are necessary to guarantee reasonable adjustments in terms of universal accessibility and, in any case, those required at the request of the owners in whose home or premises they live, work or provide volunteer services, people with disabilities or over seventy years.
Obligation to refund
The community members who face said works, as a consequence of the inactivity of the Community, will have the right to reimbursement of the capital invested in the part that exceeds the fee that corresponds to assume as co-owner.
Responsibility of the Community of Owners for damage to third parties or co-owners
Given the binding nature of the provisions of the aforementioned art. 10 a) of the Horizontal Property Law, the Community of Owners may be responsible for damages caused to third parties or their own community members, which are generated due to non-compliance with the aforementioned maintenance, adaptation and repair obligations.
The civil liability for damages is the obligation to compensate that arises as a consequence of the damage caused by a breach of contract (< strong>contractual liability) or to repair the damage caused to another with whom there was no prior link (non-contractual liability).
The attribution of responsibility contemplated herein has its origin in art. 1907 of our Civil Code which expressly establishes that
“The owner of a building is responsible for damages resulting from the ruin of all or part of it, if this occurs due to lack of necessary repairs.”
Liability towards third parties for damages (non-contractual liability) is also based on art. 1902 of the Civil Code which determines that:
“anyone who by action or omission causes damage to another, through fault or negligence, is obliged to repair the damage caused”.
Responsibility of the Community of Owners for debts to third parties
Art. 22.1 of the aforementioned Horizontal Property Law establishes that “The community of owners will be liable for its debts to third parties with all the funds and credits in its favor.”
In addition, subsidiarily, the creditor may individually address the respective owner, for the share that corresponds to him in the unsatisfied amount , to which the payment will have to be previously and extrajudicially required.
Limits to the responsibility of the community of owners
The aforementioned community members’ right to reimbursement can be exercised within certain limits developed by law and jurisprudence.
The TS Judgment of February 2, 2016, Rec. 2904/2013, declares as jurisprudential doctrine that
“The Community of Owners will only reimburse the community member who has unilaterally executed works in common areas when the Secretary- Administrator or the President warning them of the urgency and necessity of those. In the case of not mediating said requirement, the Community will be exonerated from the obligation to pay the amount corresponding to said execution.”
That is, for the right of reinstatement of the co-owners to operate, there must necessarily be a prior reliable request from the Community of Owners.
On the other hand, the amount passed on annually for the adaptation works to the regulations on universal accessibility, after discounting subsidies or public aid, < strong>cannot exceed twelve ordinary monthly payments for common expenses. However, this circumstance will not exclude the obligatory nature of these works. Well, the excess must be assumed by those who have requested them.
Regarding civil liability for damages, Section 14 of the AP of Madrid in its Judgment of July 13, 2006, referring to numerous doctrine and jurisprudence, determines that “the Community of Owners may only be released from liability, contractual or non-contractual, for damages demonstrating having deployed the provision and activity necessary to avoid the damage caused.”
