Community facilities - Owners in debt - where does the tenant stand?

I hope someone may be able to clarify something for me. We have tenants in a property who have always paid their rent. However they have now been informed that the owner of their property is in arrears with their community fees. Apparently in this complex there are many owners in debt. The president has told them that any owners who havent paid their fees will not be allowed to use the complex facilities and that locks will be changed and new keys only issued to those who have paid. Therefore the tenants will not be able to use these facilities. The main problem for the tenants in this case concerns the laundry room. The property is very small and did not come fitted with a washing machine. (non of the properties had them). The complex has an on site laundry room which obviously they use and this is what they are now being told they cannot use. They are not bothered about the pool or gym, just the laundry room. We would really like to know if they do or do not have a right to use it legally. Can paying tenants be "banned" just because their owners are not up to date? These tenants have lived their for some years now. Thanks in advance.

Dear Sir or Madam,

In short, absolutely not.

Tenants at no time can be held responsible for whether their landlord is up-to-date or not with paying the Community's fees.

At no time can a Community of Owners ban landlords -or even tenants- the use of a communal facility (i.e. laundry rooms, play rooms, swimming pools, social house etc) because of community arrears.

Any action taken to ban their use may result on either the landlord or his tenants, on his behalf, taking legal & successful action against the Community of Owners. The Community would be held ultimately liable, as a whole, for the outcome of these legal actions. In other words, every communer will be forced to pay their share for the legal blunder.

So bottom line, although undeniably unfair, a C.O. cannot deny access or impede the use of communal facilities despite of unpaid comunity fees.

You may want to read our article on the matter:

Comunidad de Propietarios: Avoid Problems with Your Neighbours in Spain - 26th June 2009

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

Hi
Thanks for the advice. My tenant is extremely worried that they will be prevented from using the facilities. We have been told, however, that it depends on what is wrote in the community statutes and that if they state that the facilities cannot be used when in arrears then the tenants can also be prevented from using them. Do you know if this is correct? My tenants are very worried and would like to know the correct law/section that states they cannot be banned as the president is continually telling them that they will not get access anymore. Thanks again.

There's no specific article saying this if that's what you are asking. It's general principles of law.

There's a special legal mechanism devised to force non-paying landlords (section 21) to meet their obligations. There's no need to forbid access to communal facilities much less to a tenant who has no fault of their own.

And even if worded in the Master Deed or Internal Community Rules it would be illegal and subject of being successfully challenged at court as per section 18, in my opinion. Other lawyers, I'm sure, will think differently.

In section 11 for example you have a similar case of non-solicited improvements added in. If one of the dissenting communers doesn't pay for it he can nevertheless use it and cannot be deprived from its use:


Section 11

1. No unit owner may demand new installations, facilities, services or improvements not required for the correct maintenance, habitation, safety and accessibility of the building, in accordance with its nature and characteristics.

2. Where resolutions are validly adopted to carry out improvements that may not be imposed in accordance with the provisions of the last preceding subsection and whose cost of installation exceed the ordinary common expenses for three months, dissenters shall not be bound, nor their fee modified, even where they cannot be deprived of the improvement or benefit.

However section 11 also adds:

If dissenters wish at any time to take advantage of the benefits of the innovation, they shall have to share in the cost of installation and maintenance, duly updated by application of the legal interest rate.

If this laundry system was implemented afterwards as a "new installation", you as landlord, if you did not pay your share towards its installation or maintainance may be stopped from it's use, along with your tenant.

Lawyers will have different opinions almost always on identical matters unless there's a specific section dealing with the matter or a string of likeminded jurisprudence.

Yours faithfully,

Hello again,
Our tenants have just been informed that in less than a week the locks will be changed to the communal gym, laundry room and even the garage which they use. They have been told that as the owner hasn't paid the fees they will not be getting new keys despite their rent being up to date. We have contacted the community who are refusing to give them new keys and who say they do not need to. What should my tenants do now?

Dear Sir or Madam,

Please scan and e-mail me the Stautes of your Community. Contact us.

I will examine them free of compromise and revert back to you.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt