Community quota calculated incorrectly in our apartment in Spain

[Lawbird Lawyer]

My wife and I own a new build apartment on a golf course we found out at our first AGM what our community charges were ours is 2050euros per annum. everyone else in our block pays about 500euro less. We have found that our quota has been calculated wrong by the developer and there architects. They have our unground parking space down as 35m2 when it actually measures 15.8m2 This also affects eight other blocks on the resort that are the same style. The developer is refusing to do anything about it. what are our rights and our best course of action.

Dear Sir,

Following art 16 of theCommonhold law on the next AGM you may request to have the wrongly assigned quota amended.

Following art 5 regarding the modification of the Communities Statutes or Bylaws require the same rules as for their constitution (unanimity).

Following art 17 such a modification will require unanimity of all fellow communers. Any dissident vote will disallow this modification.

If your fellow communers do not vote unanimously this amendment in the assigned quotas, following art 18 c) you will then be able to initiate a legal process requesting from a judge that the quotas be correctly assigned.

[Sarah]

Just following on from Andy's query about the assessment cuota. We live in a small community of 14 apartments, all the lower floor apartments cuotas are 8% and above (to 12.33%) and the upper apartments are all 4.73%.

Lower apartments have gardens ranging from 36m2 to 90m2, upper apartments have a driveway of 36m2 plus a 20m2 roof solarium.

The local conveyancing lawyer (who did all of our properties) has looked at our Master Deed (we don't have statutes as we are small) and our Escrituras to determine if the cuotas were correct as the upper apartments have bigger advantages over some the lower apartments with smaller gardens.

He concluded that the cuota's are incorrect and that all apartments should have the same cuota as they are all the same size and that under the Horizontal Property Law, gardens should not be included as part of the assessment. Would you agree with this statement? I seem to be getting conflicting information from all different sources.

We have tried to equalise the fees last year but we did not achieve unanimity, we have another meeting very soon where the opinion of our lawyer is made to everyone in the hope of achieving unanimity but we're not confident that this will still happen.

Thanks

[Lawbird Lawyer]

Dear Madam,

Frankly conflicting advice doesn't really surprise me in the least. You may ask five lawyers on the same matter and they will all give you five perfectly plausible explanations and according advice. Thre are always many angles to a matter.

In my opinion, and judging only from what you've written, the lower apartments have exclusive gardens which are not communal as they are only accessible and enjoyed by the lower flats. Therefore these gardens must be included, as it stands to logic, on the assigned quota of the ground floors. Likewise, and following the same logic, the solariums on the higher blocks are also privative elements that can only be enjoyed by them so they should also form part exclusively of the higher blocks as they are not communal.

Regarding on the driveway I'm unsure, I would need to see it to give you an opinion.

Frankly I would be very surprised if all flats have the same assigned quota, this seldom happens. The sum of all quotas must tally 100%, as it's logical. Art 5 of the Commonhold Law describes the process of assigning quotas.

[Sarah]

Thanks for your reply, to clarify the position of the driveways, these are for the exclusive use of the upper apartment owners and one at least has tiled and installed a store cupboard on theirs. The lower apartments gardens are deemed to include parking as they have double gates to allow a vehicle through.

Having read through the Master Deed again, someone helpfully jotted a note on the front of it of the square metre of all the properties and driveways and I was able to establish from this that the upper apartments were only calculated on their apartment size and the lower apartments were calculated on the plot size (to include the garden belonging to them).

On this, would you say that the driveways should be included?

Thanks

[Lawbird Lawyer]

I would say yes, they ought to be included only for the quota of the upper apartments as they seem to be of exclusive use to them.