CAN THE AGREEMENTS THAT INCREASE 20% THE COMMUNITY FEE OF THOSE RENTING THEIR HOUSING BE APPROVED IN THE OWNERS GENERAL MEETING, WITHOUT UNANIMITY?

02 Jan CAN THE AGREEMENTS THAT INCREASE 20% THE COMMUNITY FEE OF THOSE RENTING THEIR HOUSING BE APPROVED IN THE OWNERS GENERAL MEETING, WITHOUT UNANIMITY?

YES, the current and rule (set by a Decree-Law of March 2019) says that the community of neighbours, gathering a qualified majority, that of 60% of the owners, who in turn add up to 60% property fees, may set special expenses or an increase in the share of common expenses up to a limit of 20% for those owners who rent their home under a special tourist rental regime (watch out, not any type of rent, see HERE what I am referring to)

The intention of the rule is to facilitate the possibility of adopting such an agreement, which once adopted by such sufficient majority, will be fully valid.

Many lawyers believe that all this is possible without the need for a reason or justification, since the rule does not require it. But I have to tell you that there are some who believe that the measure has to have some justification that makes that increase in common expenses based on some kind of increase in general expenses, or inconvenience, or raise of community duties and that it is not just an automated rise. 

Perhaps another interpretation could be interpreted halfway, of which I am more partisan, and which is the one that says that although this justification is not generally needed, it cannot be totally absent, since there will still be a general rule, valid for any kind of effective agreement, which is the rule that allows a injured person to go to judge and challenge an agreement when it poses serious harm to such owner who has no legal obligation to bear it or the measure has been adopted with abuse. But as I say, that rule applies to any kind of agreements of a Board of Owners.

The problem is that the rule does not yet have enough travel in court and there is not a strong enough jurisprudential doctrine to set who is right. 

In any case, the Decree Law is not retroactive and although the courts will have the last word, the second question is whether it will bring consequences for the owners of the houses currently intended for tourist use – at the entry into force of the Decree-Law (March 2019)- , taking into account that the owner at the time of acquiring his house and under the then-current Statutes of the community, did not know that limitation. So this could be a source of discussion. 

Again, my opinion is that the rule would be applicable for any owner renting within the touristic regime his property for any increase approved (up to 20%) after such agreement has been agreed at the AGM and properly registered.

It is therefore possible to take such an increase of up to 20% expenditure share, with a rise in fees, although a position on the part of that majority, which can be classified as an abuse of rights because it is completely and absolutely non justified, should be avoided.