Can I combine two flats or divide mine into two?

The general meeting's resolution and the by-laws

Combining two flats or dividing one makes properties disappear or come into being and changes their participation shares, which are the percentage each flat holds in the building. The Catalan Civil Code treats it as a change to the deed of constitution, with these rules:

• A resolution of the general meeting is needed, with the votes of four-fifths of the owners, that is, 80 %, who must also hold four-fifths of the shares. Those who do not attend count in favour if they do not object in writing within the month following notification of the resolution.
• No resolution is needed if the by-laws allow flats to be combined or divided, or part of one to be transferred to another, without the consent of the general meeting. In that case, only the owners concerned sign the deed.
• The flat resulting from combining two adds their shares together. The flats resulting from dividing one split its share between them. The other owners' shares do not change.
• Each resulting flat must be able to function separately, with access to the street either directly or through the common areas.

In the rest of Spain, the Horizontal Property Act (“Ley de Propiedad Horizontal”) requires three-fifths of the owners and of the shares, as well as the consent of the owners concerned and administrative authorisation.

The works

The fact that the by-laws allow combining or dividing does not, in principle, authorise any and all works in the common areas. In particular:

• Opening a way through between two flats via a load-bearing wall or, if one is above the other, via the floor slab, which is the floor separating the storeys, affects the building's structure. It needs a technical project and a resolution of the general meeting by four-fifths.
• Dividing a flat usually requires a new door onto the landing, which is common. That also needs a resolution.
• Incorporating part of the landing or another common area into the flat is a different matter and needs a specific resolution of the owners' association. If it is done without one, the “Audiencia Provincial” of Barcelona, the provincial appeal court, has ordered it to be undone, regardless of the four-year period that sometimes protects works carried out without permission.

The town council and the Land Registry

The building permit and the owners' association's resolution are two different things. The permit deals with the planning side, but it does not give any right to touch the common parts. Nor does the owners' association's resolution replace the permit. In Barcelona, the City Council requires:

• To divide a flat into two, a building permit for major works, the one required for the most significant works, because a new home is created. That home must comply with the local planning rules, which may limit the number of homes in the building. It must also meet the minimum habitability standards required by Catalan regulations and obtain its certificate of habitability (“cédula de habitabilidad”), the document certifying that it is fit to live in.
• To combine two flats, normally a prior notification with the documentation for the works, or a building permit if the works affect the structure of the building as a whole.

Finally, the combination or division is formalised in a public deed and entered in the “Registro de la Propiedad”, the Land Registry, with the new shares.