Table of contents
Aunque la Ley del Suelo de la Comunidad de Madrid establece que la conservación de las obras de urbanización corresponde al Ayuntamiento, la realidad es que son las comunidades de propietarios las acaban asumiendo los costes de mantenimiento.
Es el artículo 136.1 de la Ley 9/2001 del Suelo de la Comunidad de Madrid la que así lo establece, desde el momento de su recepción formal. En este artículo analizamos cómo la práctica dista mucho del ideal jurídico, en qué casos se da más frecuentemente y qué deben hacer estas comunidades.
Although the Land Law of the Community of Madrid establishes that the conservation of urbanization works is the responsibility of the City Council, the reality is that homeowners' associations end up assuming the maintenance costs.
This is established in Article 136.1 of Law 9/2001 on Land in the Community of Madrid, from the moment of formal acceptance. In this article, we analyze how practice differs greatly from the legal ideal, in which cases this occurs most frequently, and what these communities should do.
2. When owners assume responsibility for maintenance: an exceptional situation
El planeamiento urbanístico puede establecer expresamente que la conservación recaiga sobre los propietarios, (art. 136.2 de la Ley 9/2001 y art. 25.3 del Reglamento de Gestión Urbanística). Para ello se prevé la creación de entidades urbanísticas de conservación, un mecanismo jurídico específico y más protegido que una simple comunidad de propietarios.
Urban planning may expressly establish that maintenance is the responsibility of the owners (Article 136.2 of Law 9/2001 and Article 25.3 of the Urban Management Regulations). To this end, the creation of urban maintenance entities is envisaged, a specific legal mechanism that is more protected than a simple homeowners' association.
3. Old housing developments: a common and recurring problem
Many housing developments, especially those built in the 1960s and 1970s, are currently maintained by homeowners' associations rather than by legally established conservation entities. This stems from the regulations in force at the time, which did not yet provide for the existence of conservation entities.
This scenario creates multiple problems: lack of access to public subsidies, legal uncertainty in the assumption of responsibilities, and inequality compared to other developments managed by conservation entities.
4. The role of homeowners' associations and their limitations
Homeowners' associations have been taking on maintenance and conservation based on old statutes and obsolete provisions, without being recognized as collaborating urban development entities. This situation means that they are not eligible for municipal financial aid and are exposed to increasingly higher costs without public compensation.
5. What services should owners really be responsible for?
The obligation to maintain urban developments is limited to the elements expressly established in the planning or in the statutes of the entity. They should not undertake large-scale works or new developments that were not planned. Private entities maintain, but do not develop. This distinction is key to reducing unnecessary expenses and avoiding excessive burdens.
6. Repair work: how far does the obligation extend?
The work that owners are responsible for is exclusively routine maintenance, ensuring normal and safe use. Extraordinary work or complete urbanization of missing infrastructure cannot be imposed, as reiterated by case law.
7. Municipal acceptance: the big unresolved issue
The acceptance of the works can be express, tacit, or presumed, each with its own legal regime and practical effects.
Express acceptance: the safest and most advisable option, it involves formalization by means of a certificate after verifying that the works comply with technical and legal requirements.
Tacit acceptance: this occurs when the City Council acts conclusively (provision of services, asphalting, lighting, etc.), even if there is no formal document.
Presumed acceptance: this occurs due to administrative silence following a request for acceptance by the owners, provided that the works are completed and in a condition to be accepted.
Formal or tacit acceptance entails the City Council assuming responsibility for maintenance work, relieving the owners of a significant financial and administrative burden.
8. What should the homeowners' association pursue in this situation?
The main objective is to obtain municipal approval. A comprehensive and strategic analysis of the feasibility of.
- Adaptation and revision of statutes and internal regulations.
- Comprehensive management of files before the City Council.
- Intermediation in obtaining grants and subsidies.
- Legal defense against possible improper liabilities.
In short, transforming a historical problem into an opportunity. The current conservation situation can and must be reviewed. From a legal perspective, there are legal formulas and avenues to achieve the release from improper obligations and move towards a sustainable, efficient, and legally secure model.
Each urbanization is a unique case that requires a tailored approach. With the right advice, real, effective solutions can be achieved that bring tangible value to all owners. You can contact our team of specialists here.
Of Counsel for Urban Planning
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