Can a community of owners charge a surcharge to neighbours who do not pay their fees? Yes. Can it set any amount it likes? No. Spain’s Supreme Court has just struck down a late payment surcharge of 0.50 euros per day because, applied to a parking space fee of 135 euros a year, it amounted to an interest rate of 135%. We explain what the Court said, where the limit lies and how to design a surcharge that will survive a legal challenge.
Few issues create as much tension in a building as unpaid community fees. The owners who pay end up covering the costs of those who do not, and the temptation for the owners’ meeting is to approve a tough measure that really hurts the defaulter. The problem is that a badly calculated measure does not just fail to collect: it can be annulled by a court, with the community ordered to pay the legal costs. That is exactly what happened in Supreme Court Judgment 1468/2026 of 22 September (Civil Chamber, cassation appeal 1039/2022, reporting judge José Luis Seoane Spiegelberg).
1. The case: 0.50 euros a day for a parking space costing 135 euros a year
A community of owners in Castellón de la Plana resolved at its meeting of 28 November 2018 that late payment of both ordinary and extraordinary fees would accrue 0.50 euros per day, without any prior demand, until the fee was actually paid. At the same meeting, the ordinary fee for each parking space was set at 135 euros a year.
Three owners challenged the resolution. One of them was denied standing because she was not up to date with her payments when the claim was filed, a detail worth remembering and to which we return below. Castellón Court of First Instance no. 1 sided with the community: it held that the surcharge was an exercise of freedom of contract with a legitimate deterrent purpose.
The Provincial Court of Castellón (Section 3, judgment 916/2021 of 19 November) reversed that decision and annulled the surcharge. Its maths was simple: an owner who fails to pay the 135 euros for a parking space accumulates 182.50 euros of surcharge in a year, equivalent to late payment interest of 135.18%. It found this clearly disproportionate.
2. What the Supreme Court decided
The community appealed to the Supreme Court, which dismissed the appeal. It confirms that the surcharge is void and orders the community to pay the costs; the community also loses its appeal deposit.
The judgment does not say that late payment surcharges are banned. It says the opposite: communities may, under the freedom of contract recognised in article 1255 of the Spanish Civil Code, approve surcharges on unpaid fees to ensure they are paid on time. What they may not do is approve surcharges that are harmful, abusive or exceed the legal limits. Policing those limits is a matter for the courts.
3. Why this surcharge was disproportionate
The Court finds the Provincial Court’s proportionality assessment reasonable and adds two arguments of its own, which are the ones that really matter to any community.
3.1. The fee was 0.37 euros a day and the surcharge 0.50
An annual fee of 135 euros works out at about 0.37 euros per day. The surcharge, 0.50 euros per day, was higher than the very debt it was meant to secure. In interest terms, 135.18% a year.
3.2. A flat rate makes no distinction between owing a lot and owing a little
The resolution applied the same 0.50 euros per day to full and partial non-payment. As the Supreme Court points out, a debt of 10 euros generated the same 182.50 euros of surcharge in a year as failing to pay the whole fee. A fixed daily surcharge, unrelated to the amount owed, is the central flaw of the resolution.
3.3. The 1,000 euro argument does not work
The community argued that, on a debt of 1,000 euros, an annual surcharge of 182.50 euros would only represent 18.25%. The Court rejects this with numbers: with a fee of 135 euros a year, building up a 1,000 euro debt takes more than seven years of non-payment, and over that period the surcharge would exceed 1,277.50 euros.
4. Not a penalty clause: it is judged as a resolution of the owners’ meeting
The community tried to defend the surcharge as a default penalty clause, relying on articles 1152 and 1154 of the Civil Code and the case law that prevents judges from reducing an agreed penalty.
The Supreme Court disagrees. The surcharge does not arise from a contractual negotiation between parties but from a resolution imposed by a majority at an owners’ meeting. It is therefore subject to the challenge regime in article 18.1 of the Horizontal Property Act (resolutions contrary to the law or the bylaws, seriously harmful or adopted in abuse of rights), not to the rules on penalty clauses.
The Provincial Court had already ruled out the Usury Act, because there is no loan, and consumer protection law, because the community is not a business vis-à-vis its owners. Even so, it used the Usury Act parameters as a reference to measure proportionality, and the Supreme Court saw nothing irrational or arbitrary in that reasoning.
5. What article 21.1 of the Horizontal Property Act allows today
The disputed resolution dated from 2018, but the judgment devotes a section to article 21.1 of the Horizontal Property Act, as amended by Act 10/2022 of 14 June, in force since June 2022. It does not apply to the case because it has no retroactive effect, but the Court treats it as an expression of the legislator’s intent. Under that provision:
- The owners’ meeting may adopt measures to deter non-payment for as long as the arrears last.
- The law gives two examples, “such as” interest above the statutory rate or temporary loss of the use of services or facilities. The list is open.
- The limit is that the measures must not be abusive or disproportionate, nor affect the habitability of the properties.
- They may never be retroactive and may be included in the bylaws.
- In addition, amounts owed to the community accrue interest from the date payment was due and not made, with no need for a formal demand. This is an exception to the general rule in articles 1100 and 1108 of the Civil Code, under which statutory interest only starts to run after a demand.
Arrears have other consequences already provided for by law: a defaulting owner cannot vote at the meeting (article 15.2) or challenge its resolutions without being up to date (article 18.2), and the flat or premises is charged with the community’s debts on the terms of article 9.1.e). We explain this in more detail in non-payment of community fees.
6. How to design a surcharge that will survive a challenge
The judgment does not set a maximum figure. In our view, and in light of what weighed in this decision, a late payment surcharge stands a much better chance if it meets these conditions:
- Proportional to the debt. An annual percentage on the amount owed is better than a fixed amount per day or per bill. That way, owing 10 euros and owing 1,000 euros do not cost the same.
- Comparable with objective benchmarks. Interest moderately above the statutory rate is defensible; a three-digit rate is not. Do the maths before voting, using the lowest actual fee in the building, which is where the surcharge weighs most.
- Not retroactive. Only for fees falling due after the resolution.
- Properly called and properly drafted. The item must be on the agenda and the minutes must state clearly how it is calculated, from when it accrues and which debts it covers. On the majorities required, see what majorities a community of owners needs.
- Habitability untouched. If the community chooses to suspend the use of a common service, it can never affect what makes the home habitable.
7. If a surcharge is applied to you: how to challenge it
If your community has approved a surcharge you consider disproportionate, these are the points to be clear about before taking any step:
- Be up to date or deposit the debt. To challenge a resolution you must be up to date with all overdue debts to the community or deposit them with the court first (article 18.2 of the Horizontal Property Act). In this very case, one of the claimants was excluded for failing to do so.
- Time limits. Three months from the meeting, or one year if the resolution is contrary to the law or the bylaws. For absent owners, the period runs from notification of the resolution (article 18.3). Our advice is always to work to the three-month limit to avoid any risk.
- Mandatory prior negotiation. Since April 2025, before going to court you must use an appropriate dispute resolution mechanism, under article 5 of Organic Act 1/2025. The request to negotiate suspends the time limit for bringing the claim while it lasts (article 7).
- A challenge does not suspend the resolution. Unless the judge orders it as an interim measure, the surcharge keeps applying while the case is pending (article 18.4).
8. Practical cases
Case 1. A fixed surcharge per bill
A Madrid community with monthly fees of 40 euros approves a surcharge of 30 euros for each returned bill. It is a flat rate amounting to 75% of the fee on each bill, unrelated to the amount owed or the length of the delay. It repeats the flaw the Supreme Court has criticised and is at high risk of being annulled if someone challenges it in time.
Case 2. Moderate default interest
Another community resolves that unpaid fees will accrue annual interest somewhat above the statutory rate from their due date. This is the model expressly contemplated by article 21.1 and, as long as the rate is reasonable, it is much harder to challenge successfully.
Case 3. The defaulter who wants to challenge
An owner owes three fees and wants to challenge the surcharge being applied. Before suing, he must pay or deposit what he owes, go through prior negotiation and meet the time limit. If he does not pay, his claim will not get past the first hurdle, whether or not the surcharge is disproportionate.
Case 4. A surcharge approved now for old debts
A 2026 meeting approves a surcharge and seeks to apply it also to fees that were already unpaid before the resolution. Article 21.1 prohibits giving these measures retroactive effect, so that part of the resolution is highly vulnerable.
Summary: the key points
- In Judgment 1468/2026 of 22 September, Spain’s Supreme Court confirms that a late payment surcharge of 0.50 euros per day approved by a community of owners is void.
- Applied to a fee of 135 euros a year, it amounted to 135.18% interest and penalised a debt of 10 euros as heavily as non-payment of the whole fee.
- Late payment surcharges are valid in principle, but they are reviewed as resolutions of the owners’ meeting (article 18.1 of the Horizontal Property Act), not as penalty clauses.
- Since 2022, article 21.1 expressly allows deterrent measures, provided they are not abusive, disproportionate or retroactive.
- To challenge one, you must be up to date or deposit the debt, meet the time limit and go through prior negotiation.
Do you need advice on a late payment surcharge or a resolution of your community?
At Quikprokuo we have more than twenty-five years of experience in horizontal property and real estate law. We review resolutions before they are voted on so they are not annulled later, and we assess a challenge when a resolution harms you. If your building is facing works or special levies, you may also be interested in our analysis of exempt commercial units and accessibility works. We will tell you how things stand, not what you want to hear.
Contact the firm and we will study your case.
