By: Mario Costa
Before going fully into the subject of the legal personality of Condominiums in El Salvador, I consider it pertinent to clarify the concepts of both Condominium and legal personality.
Doctrinally, the Condominium can be defined as the modality of property right by which its owner(s) has(have) on the one hand the exclusive and unique property with respect to a house, apartment, flat or premises, as a private unit of which a property consists and; on the other, a participation in the co-ownership of the common elements of said property, in proportion to the value of its unit.
Jurisprudentially, legal personality is understood as that instrument to operationalize or make the condition of subject of law work, that is, legal capacity to be holders of rights and obligations; being conditional to enjoy legal personality, to be a person, physical or legal.
Analyzing the above concepts, it is incomprehensible that some authors claim that condominiums enjoy legal personality, arguing that they are implicitly recognized as having a legal capacity that allows them to carry out legal acts, which would not be possible if they did not have that capacity to be the holder of rights and incur obligations.
Exposed the above, we proceed to ask ourselves, if according to Salvadoran legislation, condominiums enjoy legal personality? The answer is no.
According to our legislation, the condominium is a form of property, constituted by law (understood as the Real Estate Property Law for Flats and Apartments) and not a legal person or entity with the inherent capacity to acquire rights and obligations, as is the case of mercantile companies.
It is very important to highlight that although by the aforementioned law, condominiums must have an Administrator (natural or legal person), whose faculties, we can mention among others: comply with and enforce the respective Administration Regulations; comply with the agreements and resolutions of the Assembly of Owners; represent the owners in lawsuits in actions relating to the entire property, etc.; The foregoing, in no way, should be interpreted that condominiums are species of legal persons, with the capacity to be the holder of rights and incur obligations.
By virtue of the foregoing, since the Condominium is a property regime subject to special treatment, we can affirm that they do not have their own legal personality and, therefore, it should not be conceived that a property regime is susceptible to acquire rights and obligations, not complying with the condition of being a person.
Now, it is worth asking ourselves, if Salvadoran legislation does not recognize legal capacity in condominiums by themselves, how can any legal act related to condominiums be carried out?
With the absence or recognition of the legal personality of the Condominiums, it brings different consequences and difficulties in practice, affecting all areas, such as: contracting services for the maintenance of the property subject to the condominium regime; opening bank accounts with financial institutions in the country; contracting of employees for the service and administration of the condominium; contracting of loans or financing; etc
According to the Real Estate Property Law for Flats and Apartments, the owners are responsible in proportion to the value of their flats or apartments (unless otherwise agreed), the expenses related to the common things of the property, the payment of premiums insurance, payment of fiscal or municipal taxes and, in general, any other essential expense to maintain the conditions of service, security, comfort and decorum in good condition; also having, the Assembly of Owners, the administration and conservation of the common things of the real estate and other faculties that the respective Administration Regulation confers on them.
In practice, a developer of a real estate project or the community owners of the property, have opted for different alternatives to be represented and enforce their rights and obligations that affect the condominium, in the absence of its own legal personality and that is, the delegate to the Administrator, be it a natural or legal person, the powers of an attorney (extensive or limited), to assert the rights and incur obligations of the condominium owners.
Likewise, in general, the condominium owners or developers of real estate projects form legal persons, such as a non-profit Association (subject to the provisions of the Non-profit Associations Law) or, the formation of Development Associations. Community (ADESCOS) or in some cases, even commercial companies and, through these entities, provide a legal solution, to be represented before third parties or, the latter can exercise some legal action against the condominiums.
Faced with these alternatives, it becomes necessary to adapt or create a figure or mechanism in the law, so that the owners can be represented (whether the type of Condominium: residential, commercial or mixed), which allows (with due legal certainty), to resolve the problem that arises when the condominium does not have its own legal personality and thus provides a solution for efficient and legally viable interaction with third parties and with their owners; By way of example, forcing condominiums by law to form an entity so that through it, they can acquire rights and incur obligations, for which it would deserve an analysis of which of the aforementioned figures is the most conducive to it.