I live in a residential development: do I have to pay its service charges even if I do not use the pool or the communal areas?

Question

José Manuel Alburquerque · Accepted Answer

If the residential development (“urbanización”) is organised as a condominium (“propiedad horizontal”), yes. In Catalonia, not using the swimming pool, the gardens or other common parts does not exempt you from paying for their upkeep, unless the by-laws exempt you from that particular service or element. Nor does it help to give up using them. If the development is an association of owners (“asociación de propietarios”) or an urban maintenance body (“entidad urbanística de conservación”), the answer depends on its own by-laws and on the planning rules. What kind of development yours is The first step is to look at the deed to your home and the development's by-laws. It will most commonly be one of these arrangements: A condominium of plots (“propiedad horizontal por parcelas”), for groups of houses or separate plots that share common parts, such as landscaped and recreational areas or sports facilities. It is governed by its deed of constitution (“título de constitución”) and, where that deed makes no provision, by the general rules on condominiums. A complex condominium (“propiedad horizontal compleja”), where several buildings or blocks share gardens, a pool or other elements. Each flat then has one share in its own block and another in the whole complex. It pays the corresponding expenses with each one. An association of owners or an urban maintenance body, which are found on some developments. They have their own rules, different from those explained here. Why you have to pay even if you do not use it If it is a condominium, the Catalan Civil Code is clear. Not using a common part does not exempt you from paying for its upkeep, unless a provision of the by-laws referring to specific services or elements says otherwise. A general clause is not enough. If the by-laws set a special share for the pool or the gardens, you pay according to that share and not the general one. The “Tribunal Supremo”, Spain's Supreme Court, applies the same approach under the national legislation and has held that it is not enough to claim that the services are not received. There is one exception. If you vote against a new service that the law does not require, such as building a swimming pool, you do not have to pay for it when its cost, after deducting any grants, exceeds a quarter of the annual budget of the owners' association (the “comunidad de propietarios”). But you then cannot use it, unless you later pay your share, updated in line with the consumer price index (CPI). How to stop paying for a service If the service already exists, there are only two lawful ways to stop paying for it, even if you do not use it: The by-laws already exempt you specifically. The law allows clauses that release certain owners from the upkeep costs of specific common parts, such as the gardens or recreational areas. The owners' general meeting approves it. Setting special expense quotas or changing the by-laws requires four-fifths of the owners and of the participation shares. If what is being changed is the participation share, the percentage that each property holds in the whole, unanimity is required. Simply stopping payment on your own initiative is not a solution, because the owners' association can claim the debt from you in court, with interest. In the rest of Spain, the Horizontal Property Act (“Ley de Propiedad Horizontal”) says the same thing, namely that not using a service does not exempt you from paying for it.