SUMMARY OF THE ARTICLE:
- When can a Homeowners’ association agreement be challenged?
LPH allows agreements to be challenged when they are contrary to the law or bylaws, harmful to the community or to an owner, or adopted with abuse of rights. Also due to formal defects. Lack of notice or notification of the meeting. Lack of quorum. Undue deprivation of the right to vote. Etc.
- Types of agreements and majorities
The approval of an agreement requires different majorities, depending on the subject matter. Some agreements require unanimity (amendment of the constitutive title or bylaws). Others require a qualified majority (improvement works or prohibition of tourist rentals). There are also matters where a simple majority is sufficient (ordinary agreements). An agreement without the legally required majority may be challengeable.
- Standing, deadlines and MASC
Those entitled to challenge: owners who voted against (recorded in the minutes), absent owners, owners unduly deprived of the right to vote, or those who saved their vote. The general deadline is 3 months. If the agreement is contrary to law or bylaws, 1 year. Before going to court, it is mandatory to attempt a MASC.
At our firm, we frequently receive inquiries about the possibility of challenging a homeowner’s association agreements. In this week’s article, we offer a brief guide to our readers on how, when and in what cases a homeowners’ association agreement approved by the rest of the neighbours can be challenged.
When can an agreement in a homeowners’ association be challenged?.
The Horizontal Property Law allows judicially challenging agreements adopted by the Board in certain cases:
.- When the agreement is contrary to the law or the bylaws.
.- If it is seriously harmful to the interests of the association itself in favour of one or more owners.
.- When it causes serious harm to an owner who has no legal obligation to bear it.
.- Etc.
These reasons may derive from substantive issues as well as procedural defects.
Types of homeowners’ association agreements and required majorities.
Not all community agreements are adopted with the same majority. The law distinguishes between agreements that require unanimity (for instance, modification of the deed of incorporation or bylaws); qualified majorities (improvement works, prohibition of tourist rentals, etc.) or simple majority (ordinary day-to-day agreements).
This is fundamental, since an agreement adopted without respecting the legally required majority may be challenged.
Who can challenge a Homeowners’ association agreement? Deadline.
Those who are generally entitled to challenge agreements are:
.- Owners who voted against and recorded it in the minutes.
.- Absent neighbours, and those who were improperly deprived of the right to vote.
.- Those owners who saved their vote at the meeting.
As a general rule, it is necessary to be up to date with payments to the association (no debts) or to have deposited the amount. Although there are exceptions. The general statute of limitations for challenging agreements is 3 months. However, if the agreement is contrary to the law/bylaws, the deadline is extended to 1 year. The count begins on the day of the meeting (for attendees) or from the notification of the minutes (for absentees).
In exceptional cases, case law admits that certain agreements are not subject to an ordinary statute of limitations. These are agreements that are seriously contrary to mandatory or prohibitive norms, public order or morals, or constitute fraud on the law. However, our recommendation is always to challenge as soon as possible and within the legal deadlines.
Mandatory mediation/negotiation before going to court.
Since the entry into force of Organic Law 1/2025, before challenging an agreement in court it is mandatory to attempt an adequate dispute resolution method (MASC). This prior attempt at negotiation/mediation is a requirement for the admissibility of the claim. That is, if it is not proven that it has been attempted, the claim will be inadmissible.
Conclusions.
Challenging a homeowners’ association agreement is possible but requires acting within the deadlines and meeting the requirements established by the LPH. At White-Baos Lawyers we are experts in challenging community agreements. If you consider that an agreement harms you or has been adopted with irregularities, do not hesitate to contact us for personalized legal advice.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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