What to be aware of when buying an apartment
By Armin Gutschick & Anja Sämann-Gutschick
When purchasing an apartment, there are a number of special features that the prospective buyer should be aware of.
These are in addition to important points on the checklist for every property purchase which are not discussed here: The current extract from the land register (“nota simple”); the cadastral information on the living space (which sometimes does not match the data registered in the Property Registry); and the certificate of habitability (“cédula”).
When purchasing an apartment, the Spanish law on ownership (“Ley de Propiedad Horizontal”) plays a decisive role. As the owner of an apartment, you automatically become part of a community of owners (“comunidad de proprietarios”). The individual rights and obligations of the co-owners result from the statutes of the community (“Estatutos”). At least once a year there is an ordinary owners’ meeting (“junta ordinaria de proprietarios”). In addition, extraordinary meetings can be called about specific topics concerning the community of owners.
For example, the agreement of the owners on larger building projects which require additional levies (“derrama”).
Usually there are also house rules (“reglamento interno”) in which many regulations are laid down, such as the terrace design, the color of the house walls, the shape of the awnings or the times when the swimming pool is used. As part of the purchase, the buyer recognizes both the statutes and the house rules. In many cases the statutes of the owners’ association are even recorded in the land registry, so that the new owner automatically becomes aware of them when buying.
There are minutes of all owners’ meetings. The prospective buyer is advised to request the minutes from the last few years from the seller, as this gives a good indication of the situation within the community of owners. In the minutes you can also see whether all owners have paid their community fees (“cuota de la comunidad”), or if there are debtors. You can also find out whether the community has built up reserves over the years, and whether major expenses such as the renovation of the community pool or a painting of the facade are pending.
An important point is the distinction between individual property and communal property (“cosa común”). It must be made clear to all individual owners, which areas are private property, and which areas are communal property.
Information about this can be found in the notarial declaration of division (“escritura de división horizontal”). The percentages of co-ownership are set out in this deed.
The Spanish land register does not provide for a separate apartment land register, but the individual residential units are continuously entered in the land register with their co-ownership percentage and their own finca number according to the division in the declaration of division.
The owners pay the community fees in accordance with their share of the co-ownership stipulated in the land register, which are mainly used to maintain the common property. The amount of the community fees can be very different depending on how complex the maintenance is (shared green areas, elevators, etc.) and whether there is a shared water meter. Before purchasing the apartment the prospective buyer should definitely check whether the apartment is being sold with a corresponding parking space. In some owners associations, the apartment and parking space are sold together, but in many cases there is a separate land register sheet for the parking space.At the notary appointment the seller must bring a certificate from the president of the owners’ meeting, stating that the present owner is up to date with all payment of the community fees.
If there are unpaid debts to the community of owners, then the property is retroactively liable for those old debts. After purchasing the apartment, the owner should definitely attend the meetings, or authorize his attorney who is responsible for the case to attend the meetings.