In a Spanish community of owners, an owner in arrears (propietario moroso) has not paid a debt due to the community: fees, special levies or the reserve fund. Until they catch up, they may speak at the owners' meeting but not vote, unless they have challenged or deposited the debt. The community can pursue them through a special payment order.
In practice
The vote is checked when the meeting starts. An owner who was on the list in the notice but paid before the meeting may vote. The Supreme Court said so in 2009: the check "ha de verificarse al inicio de la reunión" (must be made at the start of the meeting). The minutes must record who lost their vote, and their person and share do not count towards the majorities.
The list goes in the notice, not on the noticeboard. Each meeting notice must include the list of owners who are not up to date and warn that they may lose their vote. The Spanish Data Protection Agency (AEPD) only accepts the noticeboard when personal notification has proved impossible, and it has fined communities that posted lists of debtors in the entrance hall. There is a template in meeting notice with the list of owners in arrears.
To challenge resolutions they must pay or deposit. Unless the resolution concerns the shares (cuotas de participación), an owner in arrears can only challenge it if they are up to date or first deposit the debt with the court.
The meeting can adopt deterrents, such as interest above the statutory rate or temporarily barring the use of services or facilities, provided they are not abusive or disproportionate, do not affect habitability and are not retroactive.
To claim the debt, the owners' meeting approves the debt statement, the owner is notified and, if they do not pay, the community files the payment order procedure under the Horizontal Property Act. In Alicante, Valencia and Málaga the Provincial Court also requires a prior attempt to negotiate, the MASC. The steps and a template letter are in claiming community fees under the MASC rule.
If the flat is sold, the debt does not vanish: the buyer answers with the property itself for what is owed for the elapsed part of the year of purchase and the three previous calendar years.
What the law says
- Article 9.1.e of the Horizontal Property Act (Ley de Propiedad Horizontal). Debts for the current year and the three before are preferential claims, and the property stays bound to their payment even if it changes hands.
- Article 15.2. No vote for an owner who, when the meeting starts, is not up to date and has neither challenged nor deposited the debt.
- Article 16.2. List of owners in arrears and warning in the notice.
- Article 18.2. Being up to date, or depositing the debt, to challenge resolutions.
- Article 21. Deterrents (21.1) and the special payment order, with precautionary attachment if the debtor opposes (21.2 to 21.5).
Common mistakes
- Refusing a vote to an owner who paid between the notice and the meeting.
- Publishing the list outside the notice. The AEPD fined a community €700 and €300 for posting it in the entrance hall (PS/00277/2023).
- Claiming with a bare payment demand in a province that requires negotiation first.
Sources
- Law 49/1960, Horizontal Property Act, arts. 9, 15, 16, 18 and 21.
- Supreme Court, judgment 466/2009 of 2 July.
- AEPD: FAQ on listing owners in arrears and procedure PS/00277/2023 (in Spanish).