miércoles, 21 de octubre de 2020
Notification of the change of owner to the Community
Notification of the change of owner to the Community is mandatory so that the seller does not respond to the payment of future common expenses.
Notification of the change of owner to the Community is a matter that has almost never been done, which represents a risk for the former owner of the flat or premises sold to a third party.
According to the law, the SELLER HAS THE OBLIGATION to notify the Community of Owners that the change of owner has occurred.
This breach may lead to joint liability with the current owner for payment of future deductions for common expenses of the property.
Article 9, letter i) of the Horizontal Property Law, establishes as an obligation of the owner of a flat or premises belonging to a Community:
"To notify whoever performs the functions of Secretary of the Community, by any means that allows proof of receipt, the change of ownership of the home or premises."
What can happen if the Community is not notified of the change of ownership?
The aforementioned article 9, i) LPH literally establishes:
"Whoever fails to comply with this obligation will continue to be liable for the debts with the community accrued after the transfer jointly and severally with the new owner, without prejudice to the right of the former to repeat on the latter."
In other words, the old owner who has sold the flat or premises will continue to be liable for the payment of the debts that the new owner contracts with the community of owners.
The character of debtor, according to the law, will be joint, which means that the Community may address itself, if it wishes, against him only to claim the debt, or if it wishes against him and against the new owner.
In the event that the old owner is the one who has to assume the debt caused by the new one, then his return may affect him.
In all cases, is the former owner responsible for future debts?
The last paragraph of the aforementioned article provides that “the provisions of the preceding paragraph shall not apply when any of the governing bodies established in article 13 have had knowledge of the change of ownership of the home or premises by any other means or by conclusive acts of the new owner, or when said transmission is notorious. "
This means that if the Community, through any of the members that make up its governing bodies (board of owners, president, secretary or administrator) has had knowledge of the transfer, the former owner will be exempt from this joint liability for future debts.
Likewise, if the new owner does any act with the community for which he presents himself as the new owner of the flat or premises, he will also be exempt. And finally, by notorious acts of the transmission carried out, such as the community knowing through procedural communications that the owner of the property is a different person.
Judgments that consider that the lack of notification of the change of owner to the Community oblige the payment of future debts:
- Judgment of the AP Orense (Section 1) of May 30, 2012:
«Finally, having proven the lack of notification of the change of ownership of any of the premises or squares, the obligation of the defendant to pay the quotas claimed is unquestionable and the analysis of the applicable expiration period for the challenge of the agreements, of the provided for in article 18 of the horizontal property law ”.
- Judgment of the AP Madrid (Section 11) of May 11, 2012:
«The demand made by the plaintiff community of owners is fully estimated and the defendant is sentenced to pay the amount claimed for unpaid community fees, despite the public auction sale of the property as the defendant did not communicate the change of ownership . »
Although the Community may have news of the transfer of the apartment or premises, it is advisable to notify the Community of the change of ownership to the Community by submitting a letter to the Secretary, to avoid any surprise, of the date of the sale and to whom it has been sold, requiring the date and signature of the receipt of the document as proof of compliance with this obligation.