Communities of property, such as communities of owners, although they are entities without legal personality, have full capacity to act in the “Legal traffic”. For this reason, according to the Department of Market Conduct and Claims (DCMR) of the Bank of Spain (@Bank of Spain) there is no impediment for a community to be an account holder. In these cases, those who can carry out the opening, disposition and administration of the community account are the proxies or authorized representatives designated by the community members, in accordance with the provisions of the internal agreements of the community of assets or, failing that, in the general rules contained in articles 392 and following of the Civil Code. Those authorized by the community members are those who, on behalf of the community, can file any claim with their bank.
In the case of communities of owners, in accordance with the provisions of article 13.3 of the Law 49/1960, of July 21, on horizontal property (LPH), the legal representation in all matters that affect them, in court and out of it, corresponds to the president of the community appointed, among the owners, by agreement of the board. For that reason, it is the president who can address the DCMR on behalf of the community to raise the complaints or claims. To do this, you must prove your position by providing the minutes of the meeting in which you were appointed to the position.
Regarding the possibility that it is the community administrator who represents the community of owners for the purposes of filing a bank claim, it is considered that, in general, this power is not among those contemplated in article 20 of the LPH . However, the administrator may exercise this representation when this attribution has been expressly attributed to him by the meeting, a fact that must be proven by presenting the minutes reflecting this decision.
Some claims received by the Bank of Spain They come to question the actions of the entities, by failing to recognize the legitimacy to represent the community of owners of the person who presented himself as president carrying the corresponding act of appointment at the owners’ meeting. This can happen in cases similar to these:
– When the entity considers the minutes of the meeting in which he was appointed president insufficient, arguing that said minutes do not contain the signatures of the outgoing or incoming positions.
– When more than a year has passed since the meeting in which the president of the community was chosen.
– The absence of the signature of another authorized by the community that the entity considered necessary to, for example, return a receipt.
– When a new president tries to return receipts that had already been paid with the authorization of the previous president.
In any case, the DCMR considers that “It would be contrary to the interests of the community of owners that their banking activity could be automatically hampered by the mere expression of any discrepancy, even that made by only one of the community members. We understand that, when a possible conflict is revealed, it is necessary for the entities to assess the set of concurrent circumstances in each case, so that there is a reasonable match between these and the eventual operational limitations that they adopt. All this without prejudice to what the competent court may decide later in this regard ”.