Unpaid Community Fees

[Minerva]

First of all: thank you very much for this Forum. I do hope that you will be able to help me with my dilemma as I have tried to resolve it amicably myself with little success. I'll try to explain this complicated scenario as clearly and concisely as I can.

In March 2009 I signed a contract for an 11 months rental for a two bedroomed property I love very much. I explained very clearly that I wanted a longer tenancy and so a clause was introduced guaranteeing a continued tenancy for a further 11 months. This was signed by both partoes. I paid the leasing agent (whom I have not seen from that day to this) half the agreed rent.
Two of the clauses were as follows:

That
there were no grievances against the property that would affect my rights as a tenant
the landlords were responsible for paymenmt of the community fees
the rent would be paid directly into the landlord's bank account

Within a month I was approached by the landlords to pay the rental in cash as it was "more convenient". Until October of last year (i.e. 7 months into my tenancy) I had received no receipts. I approached one of the landlords with a list of paynents for both rent and utilities and this was then signed.
What has been more distressing was that I found out in October that the landlords owed almost 5000 in community fees which remained unpaid. I as told by both the Community and the landlords that court action had been sought by both. I was told though a notice pout under my door to apply for a new security code, which I did not do. I was then told by the Community's lawyer that my friends would not be allowed access to the urbanisation (which is quite large) and that I would not be able to enjoy the facilities of the urbanisation (spa, pool, golf access). At that point I contacted the owners and was told that they were doing everything they could to rectify the situation. They asked for my patience. I have been very patient. My patience has now worn thin!
Now four months on they are insisting that I must sign another contract under the same terms/rental charges as before.
I have done everything I can to secure my continued peace and quiet here but to no avail. I even approached the lawyers for the community and suggested that I deduct the ongoing fees from my rent and pay them directly. Their only suggestion was that I pay all the disputed amount directly or my rights of access would continue to be restricted.
Initially, at the beginning of this month I deposited the full rental into a new bank account and informed the owner that I would be willing to pay the rent and sign a new contract once he had proved to me that the encumbrances to my tenancy had been lifted. I shortly after changed my mind as I was told this had affected their ability to pay their mortgage and deposited the rent, minus 200 euros, into the landlord's bank account since I felt that as they had defaulted on the initial conditions of the "contract" this was my only option to try to defend my position. Incidentally, properties similar to mine are now renting at 150 - 200 euros less than a year ago, even if the rights of access are free and clear. This to me is not important: I am prepared to pay the agreed rent, but I want my rights of enjoyment restored as is my right.
I have now been informed by the landlord's lawyer that they will be taking legal action against me to reclaim the 200 euros that they feel is owing.
I have tried to resolve this problem even offering to buy some of the furniture to help them to repay the debt but this too has been ignored.
I love my home. The idea of moving will be expensive and stressful. My health has suffered as a result of this ongoing situation. I have stated very clearly at the outset that I was expecting a long unmolested tenancy and that I am more than willing to sign a lease for the agreed amount provided the landlords can legally state that the stated encumbrances against my full rights as tenant have been dealt with with the community, and removed.
I cannot afford to, nor do I wish to, get engaged in a long court battle. I have been an exemplary tenant who does not wish to move. I even stated initially that guaranteed a long tenancy I might be willing to buy the apartment. As it is I truly don't know what to do next?
Any suggestions would be VERY appreciated.
Sincerely Yours,
A Good Tenant

[Unregistered]

Re: the above. The property in question by the way, is on the Erasur development at Capanes del Golf.

[Minerva]

Just one other short question:
If I move from my apartment because of pressure (see Unpaid Community Fees) can the landlord legally rent my apartment knowing that there are encumbances against the property, i.e. that he has not paid the community fees and is well aware that this presupposes grievances against the property? This is being used to force me out: that is to say that the landlord claims he can easily replace me as a tenant.
Thanks again.
"Minerva"

[Lawbird Lawyer]

Dear Minerva,

You could have terminated the tenancy contract as you had just cause for it but you decided to hang on.

Moreover, you deducted 200€ to offset the restricted access to the communal facilities. This was a mistake and it's illegal. The landlord can effectively sue you for this. Another question would be if it's worthwhile.

Your landlord can let a property legally being in arrears with the community. Another matter is if there was clause within the contract foreseeing and safeguarding teh tenant against this event which is highly unlikely.

To avoid further problems you should pay your arraers and terminate the contract as you have a just cause and move elsewhere (even within the same development) to a cheaper and hassle free rental.

Tenants nowadays are king. Plenty to choose from.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

[Minerva]

Thank you Raymundo for your quick response. You write:
"Another matter is if there was clause within the contract foreseeing and safeguarding teh tenant against this event which is highly unlikely." Do these two clauses not suffice?

That
there were no grievances against the property that would affect my rights as a tenant
the landlords were responsible for payment of the community fees

You are probably right. It is not ultimately worth the aggravation, but it is a great injustice that I, as the innocent party, have to suffer the expense and disruption of a move after I moved here initially in good faith, don't you think? It does seem to me that there are far more empty units available than there are tenants to fill them but perhaps I have been misinformed.
Anyway, thank you again.
Minerva

[Lawbird Lawyer]

Dear Minerva,

You're welcome.

I understand your predicament and fully agree with you. That clause to which you are refrring to may be a translation from a Spanish clause which really referes to not being challenged in the pacific possession of the property. An no one is challenging you on the possession, only blocking your access to the communal facilities for non-payments -of the landlord- which is not the same. You may be construing the original Spanish clause wich is thought out for a compeltely different and unrelated meaning i.e. squatters

The lack of access can incidentally be challenged but again, being practical, I'm of the opinion that is not worth pursuing as it would be through the Spanish law courts. I would really have to examine your Community Bylaws to read what they rule on this point.

Being practical, I really believe it's not worth all the hassle (time and money) being there so many properties available to let at fantastic prices post credit crunch. Landlords are now desperate to let empty properties, might as well take advantage of the golden opportunity rather than fending off the Community and simulataneously challenging your Landlord which can end badly for you sitting before a Spanish judge for breach of contract. No matter how right you may be, that is not the point.

Besides, it's not up to you to pay the Community arrears unless worded and agreed into your Tenancy agreement; that's the landlord's duty as an owner.

You should read my latest article which has a similar point included:

Buying Property In Spain Part I. Buying Resale: Avoiding the Pitfalls - 31st January 2010

6. Knowing Your Owner’s Rights

If you are buying in a Spanish Community of Owners, Comunidad de Propietarios, it is advisable you request beforehand both the Community Statutes and the Internal Community Rules (the latter being optional, do not always exist) to avoid future problems with your neighbours. i.e. Internal Community Rules that ban tenants from using the community pool. This internal rule can be particularly troublesome for those landlords who bought with a view to let not to mention that it can be challenged.

Additionally, depending on which of Spain’s 17 regions the property you are buying is located in, besides being protected by the General Legal Consumer Embodiment which rules nationwide, you are also protected by specific Regional Consumer Laws. An example of the latter would be Decree 218/2005 which rules on Consumer’s Rights on buying and letting property exclusively for the region of AndalucÃ*a. These regional laws compliment national laws adding security and rights to consumers at large.

Regards,
Raymundo LarraÃ*n Nesbitt

[Minerva]

Thank you again, Raymundo,
I can see your point and, aggravating as it may be, I can see I am going to have to rethink my position. All of this is causing me a lot of stress and lovely as my view might be it really isn't worth it in the long run.
This forum is a very unexpected gem in a sea of worthless advice in this "paradise" we call Marbella. If I ever need a lawyer, I'll know where to come.
Minerva