On 28 May 2023, Legislative Decree No. 1568 ("Law") on the Horizontal Property Regime was published, which will become effective 180 calendar days after the publication of its regulations, which, in turn, must be published within a maximum period of 180 calendar days from the publication of the Law.
One of the novelties of interest for the Owners' Meetings is that the Law grants them a new power to be able to lock a "Charge" in the Registry Entry corresponding to the property owned by the delinquent owner of the maintenance fees of the building. Thus, the Law establishes that the agreement of the Owners' Meeting, following the procedure for its registration and/or lifting to be established in the future Regulations of the Law, will be sufficient for such a "Charge" to be placed in the registry entry.
We consider it important to highlight the following:
With this development, the Boards of Owners are being empowered with a new resource to encourage the payment of maintenance fees, thus making this debt public in the registry entry of the property owned exclusively by the debtor in question. Although the regulation does not expressly state it, we consider that noncompliance with the "maintenance of the building" should cover both ordinary and extraordinary fees, since we understand that the legislator wanted this power of the Owners' Meeting to be extended to those amounts necessary for the proper functioning and conservation of the common goods or services.
Although the Law regulates the "Charge" as an attractive and novel element, from the text of the Law it is not possible to conclude whether it is a "Charge" for publicity purposes only, or whether the legislator intended to convert the obligation to pay maintenance fees into obligations that will pursue whoever is the owner of the property in the future. Certainly, the latter would enable the Board of Owners to obtain the collection of what is due, since it would make the debt opposable to the future owners of the property affected by the Charge (in the face of which, the purchaser could pay the debt of its seller and deduct this amount from the sale price). However, the lack of clarity regarding the Law opens the door to interpretations and leaves the task to the Regulations to define this situation, without exceeding the limits already established in the Law.
Another important point on this subject is that the use of the term "Charge" is deliberate. This is because we consider that the legislator did not intend to confer on the Board of Owners the powers of a "coercive executor," given that even when the Charge is recorded in the public registers, the intervention of the judge will be necessary to put the property owned by the defaulting owner up for auction, prior annotation of a seizure made by the latter. Precisely, in order to be able to place this lien, the Law itself has maintained a regime similar to that of the law still in force, which establishes that: (i) the unpaid receipts for maintenance fees are enforceable titles, which allows the collection to be brought to court in a faster way than the ordinary one, called the "Single Execution Process"; and (ii) it is within the framework of said process that the judge in charge may place the referred lien.
In addition, the Law contains a series of novelties with respect to the current regulation, some of the most relevant of which are presented below:
Law N° 27157
Legislative Decree N° 1568
Exclusive Property and Common Property; and Co-ownership and Independence.
Horizontal Property, thus eliminating the Joint Ownership and Independence Regime.
Horizontal de facto properties
De facto horizontal properties are recognized. This regime will be applicable to real estate units of exclusive property that share common goods and services, even if in the past they have not been formally constituted under the horizontal property regime.
The term is created to encompass the pre-independence, internal pre-regulations and pre-declaration of factory.
Disaffectation, disposition and encumbrance of Common Property
At least two-thirds of the owners must approve any of these acts, unless otherwise agreed on in the internal regulations.
At least 75% of the owners must approve any of these acts, unless otherwise agreed on in the internal regulations.
Coexistence Manual and Sanction Regime
Without express precedent
The power of the Board of Owners to create various manuals and protocols, including the coexistence manual, is recognized, and the latter may include a regime of sanctions. Although the creation of these manuals (and their sanctions) was a usual practice, the Law has expressly established their legality. However, none of the aforementioned acts are registrable, and therefore the Regulations must define the scope of their enforceability against future purchasers.
Independence of Areas in Projects by Stages
Without express precedent
In the case of buildings to be executed in stages, the General Internal Regulations may be used to separate the areas or sectors foreseen for such stages. However, the Law does not clarify whether such independence may be made even before the development of the first stage, which must be specified in the Regulations of the Law.
The following are created: (i) the Registry of Debtors of maintenance fees for common goods and services; and (ii) the Registry of Administrators of Buildings subject to the horizontal property regime.
We trust that this information will be useful to you. Should you require legal advice on this subject for your company, please do not hesitate to contact us.