With the arrival of the hot weather, this homeowners’ association decided to build a swimming pool, although not all the neighbors were in favor of it. We review the Supreme Court ruling to see what happens to those who disagree, whether they must pay their part of the expenses, or whether they can prevent the construction of the pool.
Before the Supreme Court came this case in 2018, which set the criteria to be followed for many communities of owners who want to make new installations in their community space, especially swimming pools, in the face of the increasingly high summer temperatures in our country.
The construction of a swimming pool from scratch is an innovation according to the Horizontal Property Law, which can only be approved by three fifths of the owners and quotas, not only of those attending the meeting.
However, this ratio assumes that 40% of the neighbors may not agree with the construction of this pool and the project can still be started. Of course, this implies many problems in reality, because who will be liable to pay for the swimming pool, only those who agree? And if so, it would be unfair for those who have not contributed to pay for the pool to be able to use it; can they be prohibited from doing so?
All these questions are answered in the Supreme Court’s ruling. We summarize the conclusions:
Payment. Those who have voted against the construction of the swimming pool are excluded from the payment of the fees for the construction and consequent maintenance of the same. The property manager must pass on the cost only to the neighbors who voted in favor.
Usage. Those who voted against, will be consequently excluded from the use of the pool. They may not use it under any circumstances. In practice, this may be difficult to control, but in the event that they (or the buyers of your apartment, in case of sale) wish to start using it, they will have to pay their share of the share of the derrama that would have corresponded to them, as well as the maintenance and use of the pool.
In other words, no owner will be obliged to participate in a spillover of an innovation, but if he decides not to do so, he will not have the right to use such innovation.
So, if there is a quorum, won’t the other neighbors be able to prevent it?
The law protects the neighbors against this type of works, of innovation, so there will be ways to oppose the agreement reached.
This is the case that reached the Supreme Court. The community had submitted a project in which the swimming pool would be built in a common area that until then had been used as a garden. Well, the neighbors who did not agree with the construction of the swimming pool alleged that they were being deprived of the use and enjoyment of the garden, so they challenged the resolution of the meeting in which the construction of the swimming pool was approved.
This argument had its legal support in the prohibition by law of making innovations that make any part of the building unusable for the use and enjoyment of any owner without their consent.
That is to say, it would be impossible to build the swimming pool on the communal garden since this would imply that the owners against the construction of the swimming pool would continue to enjoy the garden.
Finally, in the case tried by the Supreme Court, it determined that the agreement of the meeting was valid, since the pool did not completely occupy the garden, so that the neighbor in disagreement could still continue to enjoy sufficient space.
This may not happen in all cases, so it should be noted that it is possible that this type of agreements approved with neighbors against may be annulled. Of course, for the agreement to be annulled, it must have been challenged in due time and form.
To resolve complex questions about decision-making in your homeowners’ association, please do not hesitate to fill out our contact form. We will be pleased to assist you, guiding you without obligation with the experience that gives us our reputation.
Sincerely yours,
Legal Department.
Álvaro Porcar Abogados
