We are a small community of owners in the Costa Blanca. Some residents systematically refuse to pay and due to this problem there is never enough money to do any changes / works in the community or to pay the gardener, administrator etc. and their bills are always pending of payment. The administrator has told us that the community could directly claim for this payment by a proceeding called Proceso Monitorio without the need for a lawyer or any other legal representative. Can you please advice?
Thank you for your query.
The community can indeed claim directly to the debtors/owners without the need for a lawyer as you say in your consultation, by means of a MONITORIO court process as long as the debt does not exceed the amount of 250.000 Euros which is most unlikely. This is a good option as the community can make a direct claim.
We believe that in some cases it would be interesting, though not mandatory, to hire the services of a solicitor for the following reasons:
1.- Legal formalities and know how of the Courts: The use of a lawyer will insure that the claim is correctly drafted, according to the necessary legal requirements and he can also advice you about the know how of the administration of Justice, steps to be followed, other options available, etc.
2.- Claiming for the correct amount: Using a lawyer will ensure that the community claims for all the amounts legally enforceable against the debtor, such as unpaid community fees, legal costs, costs of previous registered letters, etc.
3.- Provision of funds and legal fees: Many law firms including our office when dealing with claims from a community of owners work with a minimal provision of funds, basically enough to send the debtor a registered letter before filing the lawsuit; so there is almost no need for the community to put money out front. Also in most cases the lawyer and procurator agree with the community to receive payment after the debtor has also paid.
4.- Payment of the lawyer by the debtor (Court/legal costs). Law 49/1960 of Horizontal Property states that if the debtor pays, acknowledges the debt or opposes the debt he will have to pay the bill of costs for the solicitor and the procurator acting for the community as long as the Court rules that the community was right and even when it is not mandatory for them to act.
This is very important, as the debtor and any other community member, will learn at that time that if the communities fees /charges are not timely paid the community could claim at Court for the unpaid fees and the debtor will not only have to pay for the owed fees but also for the solicitor / abogado and procurator’s fees. This can turn out to be very expensive and surely will make everyone think twice before not fulfilling their obligations with the community.
In any case and as previously stated both options are correct and it is up to each community to choose the one they will use.
Other related information and article:
Debt collection ( General Information)
Community Debts and the liability of the new owners
The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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