When we buy a house and we are in the middle of moving, the last thing we want to hear is bad news. However, it is not at all unusual to arrive at an apartment and find yourself with the debts of the previous tenant’s homeowners’ association. Although it is not a subject that has been dealt with very often, arrears in blocks of apartments have been on the rise since the pandemic and there is no prospect of it falling with the price rises we are experiencing. However, this fact does not mean that we should not do something about a debt that is not ours but must be solved. The first thing to do to avoid getting into this situation is to ask the owner of the house or apartment for the current certificate of payment to the community of owners. For that reason today we want to speak in depth of this type of proceedings and of how to be prepared in case that it is necessary to change some information.
What is a current certificate of payment of a community of owners?
The current certificate of payment of the community of owners serves to confirm that, at the moment in which the contract of sale is signed and the apartment passes to the hands of a new owner, the seller is up to date with the payments of the expenses of the community, ordinary and extraordinary, that he has pending, even with future maturity.
It is normal that, when we are going to buy an apartment, we do not realize that it is part of a community of neighbors, that they share expenses and that, for whatever reason, the person with whom we carry out the purchase-sale exercise has not managed those expenses. As soon as the contract is signed, all of them pass to the new owner, who will have to pay them even if he/she has not been enjoying the property.
That is why it is much better to make sure and ask for the certificate, which will be issued by the secretary and the president of the community, whether or not the property has hired an administrator. The president will simply have to read and approve the current certificate of payment to the community of owners; it will be the function of the secretary to draft it previously. This will have to be presented before a notary, signed by the owner of the property and the secretary of the community.
It is necessary to mention the situation in Catalonia, as it works differently: if the position of secretary of the community is occupied by an administrator, the president will not need to validate the certificate. This is the only different thing that would have to be taken into account, since everything else would follow the same procedure.
Before continuing…
It is necessary to explain what we mean when we talk about the payment of the community of owners and why it can be a problem for someone who has just moved in and does not know about the existence of possible non-payments.
The expenses of community are all those destined to maintain the building in perfect conditions. They are of an ordinary nature and can range from the maintenance of the elevators (if the building has them), the cleaning service, municipal taxes, utilities, etc. When something is not going well in a community, it is necessary to hold a meeting attended only by the owners of the properties to approve the 2 types of community expenses:
- Ordinary or general. These are used to pay for any repairs or basic needs that the building needs to be in good condition.
- They are not part of the annual budget and are made up of expenses that were not foreseen.
These general expenses are distributed among all the owners and the amount to be paid will depend on the participation they have in the building. If there are common areas in the block, such as a garden area or a swimming pool, and there is an owner who does not use them, he/she will have to pay them as well. No matter who it is, the owners of the properties are always obliged to comply with all payments.
The general expenses, which are the common ones, are discussed and approved in the different ordinary meetings, in which all the owners have to be present. Some of them include:
- Expenses for the maintenance of daily services (cleaning, bank charges, elevators, portal light, garage, janitor, swimming pool, gardens, etc.).
- Maintenance expenses of other common elements (roofs, pipes, boilers, etc.).
- Works for the conservation of the building.
- Reserve fund. Used to cover works or emergency expenses (must exceed 10% of the last ordinary budget).
- Municipal expenses for garbage collection or parking.
When does the current certificate of payment of a community of owners come into the picture?
As we have just explained, the community fees are necessary for the building to function and be in good condition, so it is necessary for the owners to pay the money on time. When a property changes ownership, the first owner must have paid any debts before selling the property. It is the Horizontal Property Law that regulates and establishes that, in the deed of sale, the seller must ensure that all the payments of the community of neighbors are up to date.
So that there are no surprises, in addition to his oral confirmation, he must also present a certificate, which will be written by the secretary of the community and approved by the president. This will detail the status of any debts owed by the property in relation to the community of owners.
This document is of obligatory presentation on the part of the seller at the time of the sale. The only case in which it will not be necessary that it exists is if the buyer expressly exonerates the salesperson to make delivery of the same one. Such a move would be neither astute nor advisable for him, since there is a risk that there are debts to be paid that will be passed on to the new owner.
Demanding the current certificate of payment to the community of owners helps us that, if there is an unpaid debt, the process of the purchase operation can be paralyzed until the current owner has solved those debts.
It is also possible to reach an agreement with the seller so that the debts to the community are maintained but the price of the property is reduced to the buyer in exchange for the cancellation of the debt or that the buyer takes out an insurance policy to cover possible debts that may fall on the property.
In any case, it must be taken into account that, if an owner does not pay the monthly installments, it is considered to be a debt in favor of the community, so it can be claimed out of court. If this option does not work, it is also possible to resort to the judicial route by filing a lawsuit claiming the relevant amount.
In order to avoid complex situations, the law has established that the non-payments to the communities of neighbors before a defaulter are considered privileged or preferential credit. In this way, when the assets and liabilities of the debtor are liquidated, the payment of this debt will have ‘preference’ over other debts that the defaulting owner may have (mortgage credits, annotated preventively in the property registry…).
Article 9.1.e of Law 49/1960, of July 21 on horizontal property explains that, the property being acquired is the one that responds for any debts to the community of owners that may be owed. These must consist of the general expenses of the previous owners up to the limit of those that can be imputable to the expired part of the annuity when the acquisition occurs and to the 3 previous calendar years.
This means that the community may seize the property if there is a previous debt, so it will always be better to pay and then claim from the previous owner the expenses you have had to bear. Hence the new owner should always claim the community minutes of the current year and the 3 previous years.
Do I have to pay for this certificate?
The Horizontal Property Law does not clarify that you have to pay for the current certificate of payment to the community of owners, but it all depends on whether or not it is done by a professional:
- If the certificate is completed by the president, if he also has the title of secretary and administrator, or by the secretary non-administrator, its issuance should be free of charge, since it is within the scope of the duties of the office, imposed also by his condition of owner.
- If the document is issued by a non-owner secretary/administrator whose job is to perform this type of task, it is necessary to pay him/her. The professional and the community of owners should talk to agree whether or not there is a right to such a charge.
Although it is possible that the person who certifies does not charge, we always recommend that he/she does, since he/she is generating a document for which he/she is responsible, and it is logical that he/she be paid for the responsibilities he/she assumes.
By way of conclusion we can say that, when an owner is going to make the purchase-sale of his property, he must leave any debt of the apartment on the community of neighbors solved. So that the new owner can be calm, the best thing is to certify that any expenses have been settled by means of a document that credits it, endorsed by the secretary and the president of the community of neighbors and before notary.
As we know that these issues can be very complex or catch us off guard, at Blegal we can help you with this and many other matters, so that you can rest easy and worry about what really matters. Whatever legal, tax or labor problem you have, you can count on us.
We have a portfolio of services that includes a property management and insurance brokerage. If you want to know more about our services or have any questions, you can contact our team, who will be happy to help you.
Image of Unspalsh by Grant Lemons
