Did you know that in In El Salvador, there is a specific regulatory framework governing real estate ownership of condominium units and apartments, establishing the legal framework for the organization, administration, maintenance, use, and operation of the properties subject to this regime. This regulation seeks to harmonize the exercise of individual property rights over each real estate unit with the rights and obligations of the homeowners’ association regarding common property, areas, and facilities.
What are the consequences of not having condominium management regulations?
The absence of administrative regulations can lead to various difficulties, including:
- Challenging the legitimacy of certain administrative decisions.
- Difficulties in determining how common expenses should be allocated and collected.
- Disputes Regarding the Administrator's Powers.
- Difficulties in determining the rules for convening and conducting assemblies.
- Difficulties in enforcing certain internal obligations that are not expressly provided for by law.
- Disputes over the use of common areas, especially when the law does not provide a sufficiently specific rule.
The absence of the Administration Regulations does not, in and of itself, imply the nonexistence or nullity of the real property ownership regime for condominium units and apartments; however, it constitutes a failure to comply with a requirement expressly provided for in Article 3, subparagraph “e)” of the Special Law, and creates a regulatory vacuum regarding administration, maintenance, allocation of expenses, the administrator’s powers, and the operation of the Owners’ Assembly—matters that Articles 25 and 26 specifically entrust to the Administrative Regulations.
Legal Basis
The The original building management regulations are drafted by the building owner or the development company, and must be recorded in notarized document.
Once the regime was established, the Article 25 provides that the Homeowners' Association Meeting can:
- Amend the regulations; or
- Even enact a new regulation to replace the previous one.
And the Article 27 stipulates that these amendments or the new regulations must be approved by the Assembly by a majority of three-quarters of the owners representing single-family homes, as well as at least three-quarters of the building's value, and must be listed in notarized document granted by the representative or representatives designated by the General Assembly of Owners.
What happens if the developer never adopted those bylaws and all the apartments now belong to different owners?
The recommendation is as follows:
- The General Assembly of Owners may decide to adopt a set of management regulations.
- It must be approved by the special majority established in Article 27: three-quarters of the owners representing at least three-quarters of the building's value.
- It must then be executed in a notarized deed by the representative or representatives designated by the Assembly.
- Finally, once the Administrative Regulations have been finalized, they are submitted to the appropriate registry for filing.
Therefore, if there has never been a set of management regulations, the most appropriate legal course of action is for the current owners, meeting as a General Assembly, to remedy this omission by drafting, approving, and adopting the regulations, rather than attempting to have them adopted unilaterally by one of the owners.
Contents That Must Be Included in the Regulations
In general terms, the Administrative Regulations must include, among other things, provisions related to the following aspects:
- Identification and Description of the Property, as well as the real estate units that comprise it and the property and areas designated for common use.
- Rights and Obligations of Property Owners or Condominium Owners, establishing the powers vested in each owner with respect to their real property unit and the common areas.
- Rules for Living Together, intended to ensure mutual respect among owners, occupants, visitors, and others who use the property.
- Rules Governing the Use of Common Areas, establishing the conditions and limitations for its use, upkeep, and maintenance.
- Allocation of Common Expenses, specifying how they are to be paid by property owners and the mechanisms for their collection, administration, and oversight.
- Maintenance, upkeep, and repair of the property, including provisions regarding routine and major repairs necessary to maintain the safety and operational condition of the property.
- Administration Schedule, establishing the organization, functions, powers, and responsibilities of the bodies charged with managing the property.|
- Convening and Operation of the General Assembly of Owners, establishing the procedures for convening and holding meetings, quorum requirements, the adoption of resolutions, and other relevant formalities.
- Regulations Governing Modifications, Renovations, or Construction Projects that are intended to be carried out within the real estate units when they may affect structural elements, facilities, facades, or common-use property.
- Use of parking lots, entrances, hallways, stairways, elevators, and other common areas, establishing the necessary conditions to ensure their proper use.
- Prohibitions and Restrictions, aimed at preventing activities that could affect the safety, peace and quiet, health, structure, or value of the property, or that could cause harm to other owners.
- Conflict Resolution Procedures, establishing, to the extent permitted by applicable law, internal mechanisms to seek the resolution of disputes that may arise among the owners or between the owners and the governing bodies.
- Procedures Applicable in the Event of Noncompliance with the Provisions of the Regulation, specifying the measures or consequences that may legally be imposed in the event of failure to comply with the established obligations
What are the benefits of obtaining the Condominium Management Regulations?
These regulations are essential to ensuring harmonious coexistence among the owners, possessors, and other occupants of the property, as they clearly and precisely establish the rights, obligations, prohibitions, and responsibilities that correspond to each of the co-owners. It also serves as a mechanism designed to preserve order, safety, health, peace, and the proper use of common facilities and spaces, ensuring that the exercise of each owner’s property rights does not infringe upon the legitimate rights and interests of the other owners.
In this regard, the Administrative Regulations allow for the establishment of provisions regarding the use and enjoyment of common areas, the maintenance and upkeep of the property, the allocation and payment of common expenses, the performance of repairs, the execution of construction work or modifications to the residential units, the use of parking spaces and other areas designated for collective use, as well as the rules of coexistence that must be observed within the building.
The General Meeting of Property Owners It is the body responsible for reviewing, discussing, approving, and, when appropriate, amending the Administrative Regulations, in accordance with applicable legal provisions and the rules established for the adoption of resolutions within the condominium or vertical property regime. To that end, the respective notice must be issued to the owners, clearly stating the purpose of the meeting and the matters to be submitted for consideration by the Assembly.
The owners of the various real estate units that make up the building or property subject to the horizontal or vertical property regime will participate in this assembly, where they may deliberate on the provisions that will govern the administration and coexistence within the property. Consequently, the approval of the Bylaws must be carried out in accordance with the formalities, quorum, and majorities required by applicable regulations and, where applicable, by the instrument establishing the regime.
The Management Regulations must ensure a balance between the individual exercise of property rights and the need to guarantee the proper functioning of the homeowners’ association. Therefore, its provisions must be drafted in a clear, precise, and objective manner, avoiding restrictions that exceed the legally recognized rights of the owners and ensuring that the obligations imposed are proportionate to the purpose of preserving the property and ensuring harmonious coexistence.
Similarly, the regulations must establish the mechanisms by which the property will be managed, specifying the powers and obligations of the bodies responsible for such management, as well as the procedures for adopting and implementing resolutions, controlling common expenses, and maintaining common property and areas.
At LEGAL SPOT We have extensive experience in real estate law, as well as in handling administrative procedures with the relevant land survey and real estate and mortgage registry offices. These types of procedures require a thorough legal and registry analysis, as well as a detailed investigation of the property’s history, in order to identify and provide appropriate solutions to the various real estate-related situations that may arise.
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