Who has standing to claim for damage in a homeowners’ association

Many owners face the dilemma that their new-build home has defects and there are also deficiencies in the communal areas of their development (the swimming pool, garage, stairways, etc.), but because the homeowners’ association has only just been set up and the neighbours barely know one another, it is not possible to agree on making a claim, and many of the homes still belong to the developer.

First of all, we should make clear that each owner has full standing to claim at least for the damage to the private elements of their own home. They should raise and share their concern with the other neighbours through their property administrator, even proposing that the matter be included on the agenda of the next owners’ meeting. Furthermore, according to case law, each owner or co-owner may claim for damage to the communal areas for the benefit or in the interest of the homeowners’ association, although the courts have lately become more reluctant to accept this and require an express mandate to the president, who legally represents the homeowners’ association in and out of court (article 13.3 of the Horizontal Property Act, LPH).

However, when it comes to making a claim, it will always be more economical to share the cost of an expert report among several owners (covering the communal areas and a number of homes) than to commission an individual one, since the difference in price is not that great, and preparing a joint lawsuit against those allegedly liable carries more weight than a single, isolated claim by one owner (although we also handle many individual claims). The fact that the developer still owns several properties because those houses remain unsold, something very common lately, does not prevent the joint claim from being approved; in any case, a simple majority will suffice.

Contact us at dpcon@dpcon.es with any questions about calling an owners’ meeting, drafting the agenda or the minutes, or informing owners about the viability of their claim, how to proceed or our financing options.