NEED FOR LEGISLATION ADAPTED TO THE SOCIAL CONTEXT.
Some of the movements that are emerging at international and EU level to change production and consumption systems at all levels are aimed at sustainable development through energy efficiency and savings.
Sustainability is a challenge that has arisen in the environmental sphere, but extends to urban planning and real estate, and therefore to condominiums, for obvious reasons: from start to finish, energy consumption is constant and has risen exponentially with large-scale production systems.
This leads to one main conclusion: overall production and consumption will not be reduced and alternative measures must be taken:
- Change in production and consumption systems leading to the use of renewable energies.
- Changing production and consumption systems that reduce energy consumption and pollution from factors such as greenhouse gas emissions.
Leaving aside this ramification of content, which not only departs from the sphere of the Horizontal Property Law, but also goes beyond the legal sphere and into the sociological sphere, it is important to understand the functioning of the individual as part of a social mass in order to understand what is set out in the explanatory memorandum of the Horizontal Property Law itself.
It is stressed that the demands of social reality are one of the driving forces for change in the body of law at all levels. The main premise is as follows: the law, in addition to seeking justice (an excessively ambiguous concept) as its supreme aim, must evolve in step with social change.
Therefore, the Horizontal Property Law, which is based on 3 pillars (construction, lease and ownership) resulting in energy consumption even in the phases after the end of the legal procedure (e.g. the day-to-day life of the tenant), needs to be amended on a regular basis in order to meet all common objectives.
There is a final point that is crucial when it comes to taking into account the legislator’s purpose: although the Horizontal Property Law itself, at times, may seem to tend towards individualisation due to the field in which it operates (promoting individual interests such as the defence of the right to private property), it does not fail to emphasise that objective needs are the order of the day: this is where Law 10/2022, of 14 June, on urgent measures to boost building rehabilitation activity in the context of the Recovery, Transformation and Resilience Plan comes in.
It is a lever for activating change in the Horizontal Property Law, which regulates activities that affect any family or social group, and therefore generates energy consumption in the top of activities related to the legal field.
MODIFICATION OF HORIZONTAL PROPERTY LAW: THE BREAKDOWN OF THE CHANGES AND THE SIGNIFICANCE OF EACH ONE.
There have been 3 changes in the context of the Horizontal Property Law, separated into two contexts: energy efficiency and the breaking down of architectural barriers to make life easier for people with mobility difficulties.
Firstly, article 9.1.f of the Horizontal Property Law is worded in such a way that it includes a compulsory Reserve Fund in which all individuals who are part of the community of owners will participate.
This fund will cover the costs of works aimed at rehabilitation and energy efficiency. It should be noted that the aforementioned disbursements will be considered as general expenses, and not as extraordinary contributions or as a result of the momentary situation of the community or its environment.
Secondly, art.17.2 of the Horizontal Property Law now includes an established decision-making procedure for energy efficiency works: the pre-established procedure is a simple majority (although it depends on the expenditure resulting from the work, after subtraction of deductions and subsidies). What could be the reason for this?
The energy rehabilitation procedure should be promoted, preventing certain owners from establishing a veto similar to that created by certain states on the international scene when it comes to making certain decisions.
Finally, Art. 21 of the Horizontal Property Law seeks to prosecute members of the community who evade payment of community fees such as those of the
Reserve Fund.
The possibility is given to initiate several procedures, among which, on the one hand, the procedure for claiming an amount and, on the other hand, the special order for payment procedure.
There is an obligation to certify the payment obligation, but there are also stipulated deterrent consequences for defaulters such as the payment of legal interest or a possible lien (which can be lifted by the enervation of the lien).
The costs of initiating this claim procedure will be borne by the debtor, whether the debtor settles or whether there is a process with opposition that ends with a judgement upholding the claims of the Community of Property Owners as plaintiff.
Access for people with reduced mobility
In the area of modifications to buildings and common and/or surrounding areas for access by persons with reduced mobility, modifications also take into account their needs. The Reserve Funds are also earmarked for them, and the decision-making procedure for this type of work is the same.
In the context of a large city, where there are already great difficulties in accessing spaces such as leisure facilities, it is vitally important that people with reduced mobility have the security of being able to move around comfortably in their usual living environment.
These measures ensure physical and mental stability for the individual and allow for a family life in which they do not feel like a burden
.
ART.5 LAW ON URGENT MEASURES: THE EXPLANATION OF THE LEGISLATOR’S OBJECTIVES.
Article 5 of the Law on Urgent Measures sets ambitious challenges: to combine competitive socio-economic development with energy-efficient, i.e. increasingly sustainable, development. These two concepts are brought together through the principle of energy efficiency first.
The basis of this principle is that energy efficiency solutions should be considered in the first place. These solutions, however, cannot be implemented directly and without taking into account the specific environment in which they will have an effect. A cost-benefit analysis must be carried out in both energy and non-energy sectors.
The reason for including the non-energy sectors in this analysis is obvious: it is where energy production will and does take place. This means that it is where consumption must be reduced and maximum efficiency must be sought (efficiency being understood as the use of the least amount of resources possible to reach x production point).
Building (the nexus between Real Estate Law and Urban Planning Law) is mentioned in the law itself as one of the non-energy sectors where transformation has the greatest impact, due to the amount of energy resources used in the development of the activity. As explained above, in any phase of the activity (even later, after the works have been carried out and the property has been occupied) a large amount of energy is consumed, so it must be ensured that the energy resources used are reduced as much as possible (always achieving an effective functioning of the sector and, subsequently, decent living/working standards for the owner of the property).
CATCHING UP WITH EUROPE: A GLOBAL COMMITMENT
The reform of the Horizontal Property Law (and other state legislation) towards energy saving and efficiency is not only in the context of the Recovery, Transformation and Resilience Plan. It is also necessary to look at the community level.
The starting point is Directive 2010/31/EU on the energy performance of buildings. In order to simplify the explanation of the Directive and its evolution, the step-by-step can be broken down into 3 specific periods:
– The first steps, where minimum requirements and a method for calculating energy efficiency are established. The main objective is set: to adapt the energy consumption of buildings in the European Union in order to achieve the targets set by the Member States (through protocols such as the Kyoto or Rio Protocols).
– Secondly, the reform by Directive 2018/844 in 2018 outlines the general features of the previous Directive. Minimum efficiency levels are established in these sections:
- space heating;
- space cooling;
- domestic hot water;
- ventilation;
- integrated lighting;
- other technical installations in buildings
The aim is to accelerate the transformation of existing properties, although the deadlines set are too optimistic (the target date is 2020).
The energy performance certificate, where different levels are marked to determine how well a building meets EU energy consumption targets, is crucial to unify Member States’ energy consumption quantification systems.
In an exercise of coherence, what was previously agreed is amended again, in order to
establish a gradual evolution that should lead to a reduction in greenhouse gas emissions of between 80 and 95%. Decarbonisation is gaining momentum, and one of the objectives included in the main objective – the energy efficiency of each nation’s building stock – is becoming a reality.
How does the Horizontal Property Law affect this development?
The reform itself via the Law on Urgent Measures implicitly explains this. Efforts have been focused on an objective that can no longer be forgotten in real estate matters, nor in urban planning.
To meet the objectives at the community and international level, the Horizontal Property Law must direct individuals, within the Communities of Owners, to convert their homes, with the help of tools such as technological intelligence, to achieve a double objective:
1.- Reducing non-renewable energy consumption and pollution
2.- To achieve real savings in terms of money that will help to improve the quality of life of families. Saving energy and saving money are not incompatible: precisely the two horizons come together in the same line.
If you need to know how this modification of the Horizontal Property Law can affect you, please contact us and visit the updates on this subject available on our blog,
