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In STS 475/2024 – ECLI: ES: TS: 2024: 475, resolution of the Supreme Court, the debate is about whether all owners must assume proportionally the same fees according to their participation coefficient, even in the case of owners of parking spaces, commercial premises, and storage rooms, and because of the configuration of the Community they would never use the newly installed elevator in the community of owners.

Thus, the procedure began as a result of the challenge of the agreements of the Community of Owners by some owners who in their lawsuit requested: “Declare null or alternatively annulable, the agreements taken in the THIRD points of the Agenda of the Extraordinary General Meetings held on June fourteenth (14/06/2016) and July twelfth, two thousand sixteen (12/07/2016), held by the respondent, Community of Owners of ADDRESS000 núm. NUM000 , ADDRESS001 núm. NUM002 and NUM001 from Valladolid. And, all this with the express condemnation to the respondent to the payment of all procedural costs”.

This is because “Briefly, they alleged defects in the convocation, violation of the constitutive title, lack of the necessary majority, and alteration of the participation coefficients in the contribution of common expenses. They argued that they do not make ordinary use of the elevator and that, according to the statutes, they are excluded from the elevator expenses, despite which they are imposed the obligation to pay by coefficient, different from those provided for in the horizontal division deed”.

The Community of Owners responded to the lawsuit requesting its dismissal, understanding that article 18.2 of the Horizontal Property Law had been breached, also requesting the condemnation of the plaintiffs’ costs.

This provision states that: “Owners who have cast a dissenting vote at the meeting, those absent for any reason, and those who have been improperly deprived of their voting right shall be entitled to challenge these agreements. To challenge the agreements of the meeting, the owner must be up to date on the payment of all due debts to the community or must previously proceed to judicial deposit of the same. This rule shall not apply to the challenge of agreements of the meeting relating to the establishment or alteration of the participation quotas referred to in Article 9 among the owners”.

In the first instance, the lawsuit filed by the owners against the Community was dismissed.

In the second instance, the lawsuit filed by the owners was dismissed, and the previous judgment was confirmed.

The appeal to the Supreme Court was based on the correct application of articles 5 and 18.1 c) of the Horizontal Property Law, understanding, in summary, that the approved and challenged agreements harmed and/or seriously affected the interests of some of the owners, especially the appellants.

However, the Supreme Court ruled that:

1. When a new elevator is installed, owners of commercial premises and parking spaces must also contribute to the expenses involved, and their exclusion due to lack of use would be abusive towards the owners of residential units, as it alters the contribution quotas to common expenses, resulting in a higher cost for the rest of the owners, which would require unanimity approval.

2. The installation of a new elevator service must also be financed by the owners of commercial premises, as they were only exempt from its conservation or maintenance (Art. 10 of the Horizontal Property Law).

3. A statutory provision that establishes the exemption of participation of the owners of commercial premises in the expenses of maintenance, conservation, and ordinary repair of the entrance and elevator does not justify that they should not contribute to the installation expenses since it is not expressly provided for and goes beyond what is established in articles 9, 10, and 5 of the Horizontal Property Law.

4. The mere disagreement of the appellant with the chosen method to calculate the assessment does not make the agreement illegal or seriously detrimental to their interests. On the contrary, the contribution by participation coefficient is the generic modality with which all common expenses are funded, so it can hardly be said to be extremely burdensome per se.

Since it was decided that the contribution would be by coefficients, in practice, all neighbors have seen their participation percentage increased proportionally, so everyone has been affected equally.

Therefore, the dismissal of the lawsuit filed by the owners against the Community is confirmed, and the cassation appeal is dismissed.

At Roji Abogados, we have a multidisciplinary team specialized in these matters, with over 25 years of experience in representing issues related to Community of Owners in Malaga. If you find yourself in a situation similar to the one described in this post, do not hesitate to contact us and request your personalized quote. You can do so by:

1.- info@rojiabogados.com

2.- 952 211 011 and 607 202 361

3.- Send a message to Roji Abogados via WhatsApp. https://wa.me/34607202361

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