These obligations are not limited to residential properties but extend to all property types within the community, ensuring the upkeep and smooth operation of the entire building.
For example, common areas might include hallways, gardens, lifts, and recreational facilities like swimming pools or gyms. Even if the commercial premises do not use some of these amenities, they are still required to pay their share of the maintenance costs. This is because the principle behind community fees is to distribute the costs of maintaining the entire property among all owners based on their participation quota (cuota de participación). This system ensures fairness and collective responsibility for the property’s upkeep.
The legal framework governing these contributions is set out in the Horizontal Property Law (Ley de Propiedad Horizontal, LPH). According to this law, all property owners in a building must contribute to the general expenses necessary for the building’s maintenance, services, charges, and responsibilities that cannot be individualized. This includes both residential units and commercial premises, making it clear that the obligation to pay community fees is universal within a building’s ownership structure.
Community Fees for Commercial Premises
Community fees (cuotas) are mandatory for all property owners, but not everyone pays the same amount, as it depends on the participation quota. But what happens with commercial premises? How much do they pay? Do they have to cover all the expenses? Let’s clarify these questions.
Do Commercial Premises Pay Community Fees?
According to Article 9 of the Horizontal Property Law (Ley de Propiedad Horizontal, LPH), owners, whether of homes or commercial premises, must “contribute, according to the participation quota (cuota de participación) set in the title or as specially established, to the general expenses for the proper maintenance of the property, its services, charges, and responsibilities that are not individualizable”. This means they must pay the community fee based on their participation quota in the community of owners.
All members must participate in community expenses, even if they do not use certain elements or facilities, as not doing so does not exempt them from payment. For example, consider a lift that a commercial premise does not use because it is on the ground floor.
However, it is possible to establish clauses in the statutes (estatutos) that exempt certain owners from paying (partially or totally). For example, regarding the lift, it could be established that owners of ground-floor properties do not contribute to the maintenance costs.
What Expenses Do Commercial Premises Have to Pay?
In general, all property owners in a community must pay for community services, including commercial premises. Not using a community service, like a swimming pool, lift, or concierge, does not exempt one from paying the fee, unless there is an explicit exemption in the statutes or by unanimous agreement of the board.
Some community services include:
- Swimming pool (Piscina)
- Lighting (Alumbrado)
- Concierge (Portería o conserjería)
- Paddle courts, gym, or sports facilities (Pistas de pádel, gimnasio o instalaciones deportivas)
- Lift (Ascensor)
- Central heating (Calefacción central)
- Stair lift (Salvaescaleras)
- Stairs (Escaleras)
- Gardening services (Servicios de jardinería)
However, a commercial premise may not have to pay some or all of these expenses if an exemption clause is established in the community statutes.
Exemptions in Statutes
Exemption clauses (cláusulas de exoneración) must be interpreted restrictively and literally. For the exemption to be effective, it must be clearly stipulated in the statutes, unequivocally and without any doubt. Additionally, its application must follow literal criteria, ensuring the interpretation is not illogical, unreasonable, arbitrary, or against the law.
Obligations for Improvements and Accessibility
For necessary improvements and accessibility works in the building, all owners (including commercial premises and garage spaces) must pay for them. For example, in the case of a lift, those who do not use it can be exempt from maintenance costs.
Jurisprudence
For example, Supreme Court Ruling No. 678/2016 states that commercial premises exempted by statutes from stair and lift expenses do not have to pay for ordinary and extraordinary repairs or renovations unless the statutes or a unanimous agreement state otherwise.
However, for installing a new lift necessary for habitability, all owners must contribute to the cost, including those exempt from other expenses, according to recent jurisprudence. Additionally, if commercial premises have not contributed to certain general expenses previously out of ignorance or inertia, this does not change their legal obligation to pay according to their participation quota.
What About the Façade?
The façade of a building is a common element (elemento común). Necessary conservation and maintenance works are mandatory and must be paid for by all owners.
How Much Do I Have to Pay If I Own a Commercial Premise?
Each flat or commercial premise has a participation quota that defines how much it contributes to common areas and how maintenance costs are divided. This quota is calculated based on:
- The size of the property (El tamaño del inmueble)
- The location within the building (La ubicación dentro del edificio)
- The floor it is on (La planta en la que se encuentra)
- The intended use of the services and common areas (El uso previsto de los servicios y áreas comunes)
Who Determines the Quota?
According to Article 5 of the LPH, “the participation quota for each flat or commercial premise is determined by the sole owner of the building when it is first sold by floors, by agreement of all existing owners, by arbitration, or by judicial decision. It is based on the usable area of each flat or commercial premise relative to the total property, its interior or exterior location, its situation, and the presumed rational use of the common services or elements”.
