Challenging condominium owners’ association (hereafter, COA) agreements is a right of the owners.
As we highlighted in the article on The Horizontal Property Regime [20 2022], the Owners’ Meeting has the power to adopt decisions relating to the community operation and administration. Depending on the object of the decision, it will apply a different voting quorum without the need for unanimity.
As a result, a resolution passed without the consent of a proprietor or in his absence may affect him negatively.
Faced with this situation, the owner has two options to defend his interests:
- To settle the situation by amicable means directly with the Board of Owners, or
- To resort to legal action, although this is limited to certain legally defined situations.
Article 18.1 of the Horizontal Property Law (henceforth HPL) expressly establishes the situations that allow recourse to the courts:
a) When the resolution is contrary to the law or the statutes of the COA.
b) When it is detrimental to the interests of the COA itself, for the benefit of one or more owners.
c) When it causes significant damage to an owner who is not legally obliged to bear it or when they were adopted with abuse of rights.
Deadlines for challenging COA’s agreements (art.18.3 HPL)
In the case of a resolution adopted by the owners’ meeting that is considered contrary to the law or the community statutes, the time limit for contesting the resolution shall be one year, starting when the interested party became aware of the decision.
In other cases, the time limit shall expire after three months.
Conditions for challenging COA’s agreements (art.18.2 HPL)
To challenge an agreement in court, the owner must:
- Withheld his vote, be absent on the voting day or deprived of his vote (for example, for lack of information of the meeting).
Concerning this requirement, case law has held that an owner who has voted against an agreement has the standing to challenge it. - Be up to date with the payments to the Community or has made a judicial deposit of the amounts before the claim.
The HPL exempts from this obligation when the challenge to the resolutions of the General Shareholders’ Meeting relates precisely to the establishment or alteration of the participation quotas.
Case law has clarified this exception by considering that other agreements establishing a cost-sharing system, either in general or for certain specific expenses, are included within the scope of the exception (…) and as long as the said cost-sharing system is agreed upon with a view to permanence or for a specific occasion (Supreme Court Judgment No. 3522/2019).
Likewise, the jurisprudential doctrine for this requirement presupposes that the owner of several elements is up to date with the all payments of its corresponding quotas.
Effects of the challenge
An agreement challenged in court does not have a suspensive effect (art. 18.4 HPL), but precautionary measures may be requested.
What is a severe prejudice?
The HPL does not deliver a specific definition of an agreement that entails a significant detriment to an owner that he, or she, is not legally obliged to bear. It will be necessary to assess each situation individually.
Lauriane Moreira
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