There is confusion about what are the common properties and if the so called social areas of a condo can be private property. Here we clarify the confusion.
Because there have been some reviewing of legal cases in the media where for the apparent characteristics involved we can assume that the property involved are common property, but in fact constitute private property; and the fact that there has been a speculation of alleged illegalities in some institutions with respect to property that are for use and enjoyment of all co-owners of a PH, we decided to briefly and simply explain the issue.
The First Article of Law 31 of June 18, 2010 “Establishing the Horizontal Property Regime” says a Horizontal Property is constituted from Real Estate Units susceptible of independent use and with access to public venue, that is, not a captive globe or lot (with no access).
The common properties are essential elements in the projects that are incorporated into the Horizontal Property Regime and are defined in Law 31 of June 18, 2010, in paragraph 6 of Article 5, which states:
6.Commons properties. Parts of a building or complex, under the Horizontal Property Regime, set in undivided belonging to all owners of private property in accordance with its coefficient of participation allocated in the Joint Ownership Rules which, by its nature or destination, permit or facilitate its existence, stability, operation, maintenance, safety, use and enjoyment.
We appreciate that there is widespread concept among people that a Horizontal Property must include in its common properties the pools, lobby, massage parlors, gyms, etc. (if there are any) of the buildings, and that’s a misconception.
Not all PHs have pool, lobby, booths, party areas, or gyms, since they are not necessary for its existence, stability, operation, maintenance, safety, use and enjoyment; and therefore, if they exist, they are not necessarily COMMON PROPERTY. That will depend on the use of P. H. and the contracts that were signed between sellers and buyers, of the advertising of the project, etc.
One area where there is a pool or a bar can be property unit and therefore be a private good susceptible to alienation, since Law 31 of June 18, 2010 defines them as follows:
8. Private properties: Those which according to the inscription made in the Public Registry belong to a specific person or persons individually or collectively.
So, can be a swimming pool a Real Estate Unit? The answer is yes. Provided that it is agreed in the contract, the Regulations and has been described and declared as such.
Here is an example:
A person decides to buy two floors of a building that will be incorporated into the Horizontal Property Regime, but asks the developer in one of those floors to build a recreation area, which will have a pool, a gym, a space for parties, and a small little park with games for children.
Then that person is generous and lends gives access to the floor to other neighbors who are friends of his sons, for their use.
If we get carried away by the apparent and we think that if there are certain characteristics then the property is a common good, we will make a huge mistake that goes against the right to private property, which is protected by our Constitution and laws of our republic.
Of course anyone can be mistaken, but it should be just that, a confusion.
Our recommendation is that you should be very careful in reviewing the contracts signed for the promise of sale, which must have the characteristics of what is being purchased.
Given this background we recommend to all who will sign contracts to buy real estate to hire the services of professional expert lawyers in the matter so that they can save themselves future problems.