August is the time of the year when many communities choose to hold their annual general meeting, elect their president, approve the budget for the year ahead and go over the accounts of the previous year.
Some owners are quite surprised to see “Legal Fees” in the expenditure column of the accounts and question why a community should pay legal fees. Unfortunately for communities justice is not free. It is quite possible for a community to find itself in conflict with all manner of people and companies, common examples being, gardening and maintenance companies not doing their job or owners who are behind or simply refusing to pay their community fees. These issues often have to be resolved in court and this takes money. Understandably there are different jurisdictions for different issues; criminal courts for criminal cases, labour courts for disagreements concerning employment and then there are the civil courts. Civil courts deal with many of the issues that face communities, such as the none payment of community fees, breaches of contract and compensation etc.
Under Spanish law all individuals are free to seek legal aid and should a person fulfil the required conditions correctly, the state can appoint a legal professional to represent that person at court without charge. Unfortunately communities do not enjoy that same privileges. When a community needs the skills of a solicitor or a procurator to instigate legal proceedings or defend themselves in a situation then the community has to pay.
This said, under Spanish law some court procedures do not require a solicitor or a procurator. For example, when a community wants to claim unpaid community fees from an owner for an amount of less than 2,000 Euros, then the services of a legal professional are not necessarily needed.
However the Law of Horizontal Property says, if a community chooses to use a legal professional to help them win their case, even if the amount is for less than 2,000 Euros, the community can also claim their legal expenses from the debtor. The exception is, if the debtor asks for and receives legal aid then the chance to recover the communities legal expenses is lost.
In general when a community wins a case in full, the judge can order the other party to pay the communities legal costs. However if the other party can show themselves to be insolvent then there is nothing for the court to embargo and not only does the community have to pay their own costs, they are also not reimbursed for other items either, such as publications in official papers, the fees of an architect or translations. Some claims especially against banks etc even though the community is successful, the sentence does not include costs. So not only is justice not free, in some cases its starting to get expensive.
Obviously the fact that a judge just rules against a community must not be overlooked. Even in the most straight forward of cases it is not unknown for a judge to misinterpret a situation or for completely unexpected reasons, rule against the community. Meaning the community will not only have to cover their own expenses but possibly those of the other party as well and wrong as it may seem if the amount concerned is for less than 3,000 euros there is no right of appeal. Although the rights of the community may be have been upheld, it does not follow that justice for communities comes without a cost.
As usual we advise the readers of our articles to seek proper advice in all matters concerning the law.
This article has been published in Euroweekly News ( Community Corner), written by José Luis Navarro.