Includes cross-references, highlighted amendments, and supplementary legislation
LEY DE PROPIEDAD HORIZONTAL (LEY 49/1960, DE 21 DE JULIO, SOBRE PROPIEDAD HORIZONTAL)
If, in general terms, no legal framework can be conceived or established by turning its back on the demands of the social reality it is intended for, this must be even more so when it deals with an institution which, like horizontal property, has acquired such vigorous vitality, especially in recent years, despite finding no more regulatory support than the openly insufficient one represented by article three hundred and ninety-six of the Civil Code. This law, therefore, aims to follow the social reality of the facts. But not in the simple sense of turning any data obtained from practice into a rule, but with a broader and more profound scope.
On one hand, because of the future dimension inherent in a legal framework, which prevents it from being understood as a mere sanction of what happens today and obliges the foresight of what may happen. And on the other hand, because although the starting point and immediate destiny of norms is to govern human relations, for which their adaptation to the concrete and historical demands and contingencies of life is very important, it must not be forgotten that their ultimate purpose, particularly when positive law is conceived as a function of natural law, is to achieve an order of coexistence governed by the idea of justice, which, as a moral virtue, supersedes both the reality of the facts and the determinations of the legislator, which must always be limited and guided by it.
There is a basic social fact that in modern times has greatly influenced the regulation of urban property. It manifests itself through a constant factor: the indispensable need for buildings, both for the life of the individual and the family and for the development of fundamental activities, such as commerce, industry, and, in general, the practice of professions.
Alongside this constant factor—which is inherent to any system of life and coexistence within a basic civilization—another factor, arising from very diverse causes, presents itself today in very pronounced terms: namely, the difficulties involved in the acquisition, availability, and enjoyment of habitable spaces.
State action has addressed this real-world situation in three distinct but closely related spheres:
In the sphere of construction, by stimulating it through indirect measures and even, at times, by directly undertaking the enterprise;
In the sphere of leasing (rentals), through frequently updated legislation that restricts the autonomous will of the parties in order to ensure stability in the enjoyment of housing and business premises, under economic conditions subject to a system of intervention and review;
And in the sphere of property, primarily by means of so-called "horizontal property," which projects this ownership title onto specific spaces within a building.
The essential raison d'être of the horizontal property regime rests on the goal of achieving access to urban property through a capital investment that—by being limited to only the space and essential elements necessary to meet one's needs—is less substantial and, therefore, more affordable for everyone and the only option possible for large sectors of the population.
This being the case, the horizontal property regime not only needs to be recognized, but also requires that it be encouraged and guided, equipping it with a complete and effective legal framework.
This is even more true when one observes that, on the other hand, existing laws on urban leases are little more than occasional remedies that resolve the conflict of interest imperfectly, since the strengthening of the leasing system is achieved by imposing a burden on property that it can hardly bear. In contrast, by combining measures aimed at increasing construction with a well-organized horizontal property regime, the housing problem (and its related issues) is confronted on a more appropriate level, which allows for stable solutions. In the long run, this will also benefit the leasing system itself, which, free from the pressure of urgent demands, can be liberalized and properly fulfill its socio-economic function.
The law represents not so much a reform of the current legality, but rather the 'ex novo' [from scratch] and complete regulation of property by flats. It is carried out by means of a law of a general nature, in the sense that it is applicable throughout the entire national territory.
Article three hundred and ninety-six of the Civil Code, as occurs in analogous cases, contains the essential notes of this property regime and, for all other matters, is reduced to a referral standard.
The general character of the law is advisable, above all, for the legislative policy reason that the need it serves is manifested equally throughout the territory; but a legislative technique reason has also been taken into account, which is that the provisions into which it translates—without descending into regulatory detail—are sometimes of a circumstantial specificity that exceeds the typical tone of a Civil Code.
Horizontal property made its appearance in legal systems as a modality of co-ownership (comunidad de bienes). The progressive development of the institution has tended mainly to emphasize the characteristics that make it independent from co-ownership. The modification introduced by the Law of October 26, 1939, to the text of article three hundred and ninety-six of the Civil Code already signified a step forward in this regard, as it recognized the private or singular ownership of the flat or premises, leaving the co-ownership, as an accessory, limited to what has been called the 'common elements'.
The law—which incorporates the material prepared with deliberation and care by the Code Commission—taking another step forward, aims to maximize the individualization of ownership from the point of view of its object. To this end, the building itself, its appurtenances, and its services are incorporated into this object of the legal relationship, which is constituted by the flat or premises.
While the use and enjoyment of the flat 'stricto sensu'—or the demarcated space for independent use—are private, the use and enjoyment of the 'immovable property' (building, appurtenances, and services), abstracting from the individual spaces, must naturally be shared. However, both sets of rights, although different in scope, are deemed inseparably united, a unity they also maintain with respect to the power of disposal.
Based on this same idea, the coefficient or 'cuota' (share) is regulated. This is no longer just the participation in what were formerly called the common elements; rather, it expresses—both actively and passively, as a module for charges—the proportional value of the flat (and all that is considered united with it) within the whole of the property, which, at the same time it is physically and legally divided into flats or premises, is thus also divided economically into fractions or 'cuotas'.
In this individualizing purpose, one should not see a dogmatic concern, much less the enshrinement of an individualistic ideology. The point is that, without forgetting the aforementioned social function that this institution fulfills, it is understood that the aim of simplifying and facilitating the horizontal property regime is thus achieved more satisfactorily.
By moving away from the co-ownership (comunidad de bienes) system, the express elimination of the rights of first option (tanteo) and redemption (retracto)—which were recognized, with certain peculiarities, in the hitherto effective wording of the aforementioned article three hundred and ninety-six—becomes not only consistent, but reassuring.
However, in this case, it was not this technical consideration alone that guided the law. A decisive influence was exerted both by the notorious experience that the exclusion of such rights has now become almost a 'standard clause' (cláusula de estilo), and by the thought that what is sought here is not a concentration of ownership of the flats or premises, but, on the contrary, their widest possible dissemination.
A matter of special study has been that concerning the establishment of the horizontal property regime and the determination of the set of duties and rights that comprise it.
Until now—and this has a historical justification—this subject, in the absence of legal norms, has been entrusted almost entirely to private autonomy as reflected in the Bylaws (Estatutos). These [Bylaws] were frequently not the result of free, mutual determinations by the contracting parties; rather, they were ordinarily dictated by the promoter of the construction project, adhering to certain types generalized by practice, with the individuals entering the horizontal property regime merely consenting to them.
The law provides a regulation that, on one hand, is sufficient in itself—with exceptions left to private initiative—to constitute, in its essence, the legal system that presides over and governs this class of relations. On the other hand, it allows for certain rights and duties to be specified, completed, and even modified by the will [of the parties], provided they do not contravene the mandatory rules of law (derecho necesario), which are clearly deductible from the very terms of the law.
Therefore, the formulation of Bylaws will not be essential, although they may fulfill the function of developing the legal framework and adapting it to the specific circumstances of diverse cases and situations.
The system of rights and duties within the horizontal property regime is structured according to the interests at stake.
The rights of enjoyment (derechos de disfrute) tend to grant the owner the maximum possibilities of use, with the limit being represented both by the concurrence of the rights of the same class held by the others, and by the general interest. This general interest is embodied in the conservation of the building and the subsistence of the horizontal property regime, which requires a material and objective basis. For the same reason, duties of an equal nature appear intimately linked to these rights of enjoyment. The aim has been to shape them with criteria inspired by neighbourly relations, seeking to establish rules aimed at ensuring that the exercise of one's own right does not result in harm to another's right or detriment to the whole, thus laying the foundations for a normal and peaceful coexistence.
In addition to regulating the rights and duties corresponding to enjoyment, the law deals with those others that refer to the economic outlays that the owners must jointly cover, whether they derive from the general installations and services, or because they constitute charges or taxes that affect the entire building. The basic criterion taken into account to determine each one's participation in the outlay to be made is the aforementioned share or coefficient (cuota) assigned to the flat or premises, taking care to specify that the non-use of the service generating the expense does not exempt from the corresponding obligation.
One of the most important innovations contained in the law is that of strengthening, as much as possible, the binding force of the duties imposed on the owners, both concerning the enjoyment of the apartment and regarding the payment of expenses.
Through the application of the general norms in force on the matter, the breach of obligations generates the right to legal action demanding its fulfillment, either specifically—that is, imposing through coercion what has not been voluntarily observed—or by virtue of the pertinent compensation. But this normal sanction for non-compliance may not be sufficiently effective in cases such as those considered here, for several reasons:
One is that the failure to observe the duty brings extremely disruptive repercussions for large groups of people, while at the same time hindering the functioning of the horizontal property regime. Another reason is that, regarding the duties of enjoyment, the judicial imposition of specific performance is practically impossible due to the negative character of the obligation, and compensation does not cover the intended purpose of harmonizing coexistence.
That is why the possibility of judicial deprivation of the enjoyment of the flat or premises is foreseen when strictly specified circumstances concur; and, on the other hand, the contribution to common expenses is secured with a real property lien (afectación real) on the flat or local for the payment of this debt, which is considered preferential.
The concurrence of a community of people in the ownership of rights which—without prejudice to their substantial individualization—pertain to fractions of the same building and give rise to relationships of interdependence affecting the respective owners, has made the creation of management and administration bodies indispensable in practice.
The law, which has at all times sought to be open to the lessons of experience, has taken this very specially into account in this matter. And the fruit of that [experience], as well as of the careful consideration of the various problems, has been to normally entrust the proper functioning of the horizontal property regime to three bodies: the Board (Junta), its President, and the Administrator.
The Board (Junta), composed of all the owners, has the duties proper to a collective governing body, must mandatorily meet once a year, and for the adoption of valid agreements, as a general rule, the favorable vote of both the numerical (or personal) majority and the economic majority (i.e., of ownership shares) is required. This is except when the significance of the matter requires unanimity, or when, on the contrary, due to the relative importance of that matter—and so that the simple passivity of the owners does not hinder the institution's functioning—a simple majority of those attending is sufficient.
The position of President, who must be elected from within the Board, implicitly carries the representation of all owners both in and out of court, thereby resolving the delicate problem of legal standing (legitimación) that has been arising.
And finally, the Administrator, who must be appointed by the Board and is removable (whether or not a member of the Board), must always act under its [the Board's] authority, without prejudice to fulfilling in all cases the obligations directly imposed upon them.
Furthermore, this has been given a certain flexibility so that the number of people entrusted with representation and management may be greater or lesser depending on the importance and needs of the community.
Finally, it should be noted that the economics of the established system have interesting repercussions insofar as it affects the Property Registry (Registro de la Propiedad) and requires a brief reform of the mortgage legislation (legislación hipotecaria). It was based, in an effort for clarity, on the convenience of adding two paragraphs to article eight of the current Mortgage Law—the fourth and fifth—which sanction, in principle, the possibility of registering the building as a whole, subject to the horizontal property regime, and at the same time, registering the flat or premises as an independent property (finca), with its own registry folio [file].
The fourth paragraph of the aforementioned article eight foresees the normal hypothesis for establishing the horizontal property regime: that is, the construction of a building by an owner who intends it precisely for the sale of flats, and the less frequent case where several owners of a building seek to exit co-ownership (indivisión) by mutual agreement, or construct a building with the intention of distributing it, 'ab initio' [from the beginning], among themselves, becoming singular owners of apartments or independent fractions. As an exception, with the same purpose of simplifying the [registry] entries, it is permitted to simultaneously register the specific awarding of the said apartments to their respective owners, provided that all of them request it.
And the fifth paragraph of the same article eight allows for the creation of the autonomous and independent folio [registry file] for each flat or premises, provided that the property and the establishment of the horizontal property regime are previously registered.
By virtue thereof, and in accordance with the proposal drawn up by the Spanish Cortes,
I DECREE:
Article one.
The purpose of this Law is the regulation of the special form of property established in Article 396 of the Civil Code, which is called horizontal property.
For the purposes of this Law, those parts of a building that are susceptible to independent use because they have an exit to a common element of said building or to a public street shall also be considered premises (locales).
Modified by Art. 1 of Law 8/1999, of April 6.
Article two.
This Law shall be applicable to:
a) Communities of owners established in accordance with the provisions of Article 5.
b) Communities that meet the requirements established in Article 396 of the Civil Code and have not executed the constitutive title (deed of constitution) of the horizontal property. These communities shall be governed, in all cases, by the provisions of this Law regarding the legal regime of the property, its private parts and common elements, as well as the reciprocal rights and obligations of the co-owners.
c) Private real estate complexes (complejos inmobiliarios privados), in the terms established in this Law.
d) Sub-communities, understood as those that result when, in accordance with the provisions of the constitutive title, several owners have, in a community regime, for their exclusive use and enjoyment, certain common elements or services endowed with functional or economic unity and independence.
e) Urban conservation entities (entidades urbanísticas de conservación) in cases where their bylaws so provide.
Letters d) and e) are added by the first final provision, section 1, of Law 8/2013, of June 26. Modified by Art. 2 of Law 8/1999, of April 6.
The heading is amended by Article 3 of Law 8/1999, of April 6.
Article three.
In the property regime established in Article 396 of the Civil Code, the following corresponds to each flat or premises:
a) The singular and exclusive right of ownership over a sufficiently demarcated space susceptible to independent use, including the architectural elements and installations of all kinds, apparent or not, that are comprised within its limits and serve the owner exclusively, as well as that of the annexes that have been expressly indicated in the title, even if they are situated outside the demarcated space.
b) The co-ownership, with the other owners of flats or premises, of the remaining common elements, appurtenances, and services.
A participation quota (cuota de participación) shall be assigned to each flat or premises in relation to the total value of the property and expressed as hundredths of the same. Said quota shall serve as a module to determine participation in the charges and benefits by reason of the community. Improvements or impairments of each flat or premises shall not alter the assigned quota, which may only be varied in accordance with the provisions of Articles 10 and 17 of this Law.
Each owner may freely dispose of their right, without being able to separate the elements that comprise it, and without the transfer of enjoyment affecting the obligations derived from this property regime."
Modified by the first final provision, section 2, of Law 8/2013, of June 26.
Key Legal Concepts in this Article
Two Types of Ownership: This article clarifies that you own two things simultaneously:
Private: Your specific apartment/local (the "demarcated space") and anything inside it that serves only you (e.g., internal pipes).
Shared: A percentage of everything else (stairs, roof, elevator, facade).
Annexes (Anejos): This refers to things like storage rooms (trasteros) or parking spaces. Even if they are in the basement and not touching your apartment, they are legally part of your private unit if listed in the Title.
Inseparability: You cannot sell your share of the "common elements" (like the pool or stairs) separately from your apartment. They are a package deal.
Quota Rigidity: Even if you renovate your apartment and add gold-plated floors (improvements) or if it gets damaged (impairments), your % quota (and therefore your community fees) does not change automatically. Changing the quota usually requires a community vote or a legal process.
Article four.
The action for division shall not be admissible to end the situation regulated by this law. It may only be exercised by each co-owner (propietario proindiviso) of a specific flat or premises, limited to the same, and provided that the co-ownership (proindivisión) has not been established intentionally for the service or common utility of all the owners.
Key Legal Concepts in this Article
"Acción de división" (Action for division): In general property law, any co-owner can usually demand to split up a shared property (like siblings inheriting a house). This article says you cannot do that to the whole building in a Horizontal Property regime. You cannot demand the building be "divided" to end the community system.
"Proindiviso" (Co-ownership): This refers to a situation where a single flat is owned by multiple people (e.g., a couple or business partners). This article clarifies that while you can't split the building, you can use the action for division to split up ownership of a single flat (e.g., forcing the sale of the apartment to split the money between divorcing spouses), unless that specific space was meant to be shared by everyone in the building (like a superintendent's apartment).
Article five.
The constitutive title (título constitutivo) of the property by flats or premises shall describe, besides the building as a whole, each of those [flats or premises] to which a consecutive number shall be assigned. The description of the property must express the circumstances required by mortgage legislation and the services and facilities it possesses. The description of each flat or premises shall express its extent [area], boundaries, the floor on which it is located, and the annexes, such as garage, attic, or basement.
In the same title, the participation quota (cuota de participación) corresponding to each flat or premises shall be fixed, determined by the sole owner of the building upon starting its sale by flats, by agreement of all existing owners, by arbitration award, or by judicial resolution. For its determination, the basis taken shall be the useful area (superficie útil) of each flat or premises in relation to the total of the property, its interior or exterior placement, its situation, and the use which is rationally presumed to be made of the common services or elements.
The title may also contain rules regarding the constitution and exercise of the right and provisions not prohibited by law regarding the use or purpose of the building, its different flats or premises, installations and services, expenses, administration and government, insurance, conservation and repairs, forming a private statute [bylaws] which shall not prejudice third parties if it has not been registered in the Property Registry.
In any modification of the title, and except for what is provided regarding the validity of agreements, the same requirements shall be observed as for the constitution.
Key Concepts in this Article
The "Title" vs. The "Statutes": This article distinguishes between the Constitutive Title (the "Deed" which describes the physical building and assigns the % quotas) and the Statutes (the rules of behavior, administration, and usage).
The Quota Calculation: It explicitly states that your quota (which determines how much you pay and how much your vote counts) is based on useful square meters, location (interior vs. exterior), and presumed use of services. This is why a ground floor shop might have a different quota than a penthouse, even if they are the same size.
Registration: The statutes (bylaws) must be registered in the Property Registry (Registro de la Propiedad) to be binding on new owners ("third parties"). If a rule isn't in the Registry, a new buyer might not have to follow it.
Article six.
To regulate the details of coexistence and the proper use of the common services and things, and within the limits established by the Law and the statutes, the collective of owners may establish rules of internal regime (normas de régimen interior) which shall also be binding on every owner so long as they are not modified in the manner provided for adopting agreements regarding administration."
Key Legal Concepts in this Article
"Normas de régimen interior" (Internal Regime Rules / House Rules): This is a crucial distinction from the "Statutes" mentioned in Article 5.
Statutes (Art 5): Define property rights, quotas, and usage of the building (e.g., "No commercial activities allowed"). Changing these requires Unanimity.
Internal Rules (Art 6): Regulate day-to-day living (e.g., "Pool opens at 10 AM," "No trash in the hallway," "Music volume limits").
Easier to Change: Because these rules regulate "administration" and "coexistence," they do not require unanimity to change. They usually require only a simple majority vote (50%+1). This makes them much more flexible than the Statutes.