According to Civil prosecution law, the communities of owners can resort to the payment order process to claim an overdue and enforceable debt from a neighboring owner. This type of procedure to try to collect the debt is included in Article 21 of the Horizontal Property Law.
The use of the monitoring procedure requires the prior certification of the Board’s agreement approving the settlement of the debt with the community of owners by whoever acts as its secretary, with the approval of the president, provided that such agreement has been notified to the owners. owners affected in the manner established by law. Because, of course, always it is better to study the reasons for non-payment and exhaust the channels of dialogue before taking any legal action against a neighbor.
Does it compensate if the debt is small?
Another question that usually arises in these cases is whether it is worth reporting. There is no minimum amount of debt to be able to initiate the procedures for this type of claim. And to the amount that is claimed, the one derived from the expenses of the previous payment request can be added, provided that the realization of it is documented, and the proof of such expenses is attached to the request. Even so, it must be taken into account that the Community will have to face some initial expenses, with which it may not compensate if the debt is very small.
If we still file the claim, the judge will require the defendant to, within 20 days, pay the community, proving it before the court, or appear before it and allege the reasons why, in his opinion, he should not , in whole or in part, the amount owed. The request must be made at the address designated by the debtor or, failing that, on the flat or premises itself. When the previous owner of the home or premises must be jointly and severally liable for the payment of the debt, the initial petition may be directed against him, without prejudice to his right to repeat against the current owner. Likewise, the claim may be directed against the registry owner, who will enjoy the same right mentioned above. In all these cases, the initial petition may be made against any of the obligated parties or against all of them jointly.
If the debtor objects?
What happens when the debtor opposes the initial request for the order for payment procedure? The community may then request the preventive seizure of sufficient assets of that one, to face the amount claimed, the interests and the costs. The court will agree, in any case, the preventive attachment without the need for the creditor to provide security. However, the debtor may enervate the seizure by providing a bank guarantee for the amount for which it had been decreed.
If the defendant debtor does not pay or does not appear in court, the judge will order execution for the amount owed. Since the order issuing execution is issued, the debt will accrue the corresponding interest. On the other hand, if the debtor alleges an improper request, the opposition will only be admitted if he proves that he has paid or made available to the plaintiff, before the filing of the claim, the amount that he recognizes as due.
Payment of costs
The costs will be imposed on the litigant who has seen his claims totally rejected. If the demand is partially estimated, each party will pay those caused at its own request and, the common ones, in equal parts. The order to pay the costs will include the fees of the lawyer and the attorney of the winning party, when their services have been required during the process.
On the other hand, the Law prevents the delinquent owner from contesting the agreements of the Board of Owners, except those referring to the establishment or alteration of the participation fees.
Whoever acquires a home or premises, even with a title registered in the Property Registry, responds with the acquired property itself of the amounts owed to the Community for the maintenance of general expenses by the previous owners, of the expired part of the year in that acquires it and the previous one. In addition, the apartment or premises will be legally subject to the fulfillment of this obligation. However, the new owner may claim the amounts that he had to pay for this cause from the previous owner.
For the protection of the new acquirer, in the public instrument by which the home or premises is transferred, the transferor must declare that they are up-to-date with payment of the general expenses of the Community or indicate that they owe them, providing certification on the status of debts, without This public instrument will not be authorized, nor may the transmission be registered in the Property Registry, unless the acquirer exempts him from this obligation.