The recent Spanish Supreme Court
Judgment 867/2025, of June 2 [ECLI:ES:TS:2025:2690]—which is merely a
reiteration and confirmation of a consistent doctrine—puts an end to a
controversy sparked by certain sections of some Provincial Courts regarding the
interpretation of Article 16 of the Horizontal Property Act (LPH) concerning legal
standing to convene a meeting by property owners: the owners’ standing is
subsidiary, not direct.
Article 16 of the Horizontal
Property Act refers to the meeting of property owners and its convocation,
establishing that the owners' meeting shall be held at least once a year to
approve the budgets and accounts —the ordinary/annual general meeting, or AGM— and
also “on other occasions when deemed appropriate by the president or requested
by one quarter of the owners, or a number of them representing at least 25% of
the ownership shares,” subsequently specifying in the next paragraph that:
“2. The meetings shall be convened
by the president, or failing that, by the promoters of the meeting, indicating
the matters to be discussed, the place, date, and time of the first or, where
appropriate, second call, with notices being made in the manner established in
Article 9. The notice shall include a list of owners not current with the
payment of community debts and shall warn them of the loss of their voting
rights if the conditions of Article 15.2 are met”.
As for who can convene the meeting,
the provision that “it shall be done by the president or, failing that, by the
promoters of the meeting,” has remained unchanged since the original drafting
of Law 49/1960, of July 21, even though it was then found in the second
paragraph of Article 15. The reform brought by Law 2/1988, of February 23,
preserved the text of Article 15 in this regard, merely adding that it should
specify the time and date of the first or second call, and that notice should
be given at the “address in Spain.” The same occurred with Law 8/1999, of April
6, which reformed the Horizontal Property Act, moving Article 15 to Article 16,
with a text that remains unchanged to this day.
The issue at hand concerns whether
property owners may convene a meeting, and more specifically, regardless of the
requirements they must meet for such a convocation to be legally valid, whether
the owners can directly convene the meeting themselves, bypassing the
president, or whether a prior request to the president is required, and only in
the case of express or tacit refusal can the owners proceed. In short: is the legal
standing to convene direct or subsidiary?
Let’s spoil the ending: it is subsidiary—and
has always been so. The phrase “shall be done by the president or, failing
that, by the promoters of the meeting” is unequivocal, and this has been
repeatedly recognized by Supreme Court jurisprudence over time. For instance,
in STS 775/1990 of December 10, STS 75/1992 of February 5, and STS 1173/1993 of
December 13, the Court refers to “the failure to meet the requirement of
subsidiarity imposed by the Law, which allows the possibility of a special
convocation only in the absence of the one to be made by the president.”
However, despite such clarity —and
as proof that almost anything can be argued— some courts, albeit few, have
attempted a different reading.
This is the case of Section 9 of
the Provincial Court of Madrid, which in Judgment 62/2020 of February 4,
highlights the contradiction between various Provincial Courts —and even
between sections within the same Court— regarding whether a prior request to
the president is needed before owners may convene the meeting. It defends the
original, unconditional, and equal right of the president and qualifying
property owners to issue the convocation, arguing that this right is set out in
the first paragraph of the article, which makes no reference to subsidiarity,
and that paragraph two “only regulates the manner in which the convocation must
be carried out, without limiting the right recognized in the first paragraph,”
when it states that “the meeting shall be convened by the president, or failing
that (i.e., when the owners request it), the promoters of the meeting”.
In support of this interpretation,
the Court cites a ruling from Section 13 of the same Provincial Court (Judgment
305/2009 of July 28), which, aside from the facts of that specific case (where
the president expressly refused to convene the meeting), asserts that:
“The Horizontal Property Act does
not subordinate or condition the owners' right to convene the meeting to a
prior refusal by the president or to his inability to convene. It is a right
granted by law with autonomous and direct effect; therefore, the promoters were
not required (the law does not impose such deference or courtesy toward the
office) to ask the president to convene the meeting nor to provide proof of her
refusal to do so. This is evident from Supreme Court judgments of December 9,
1993, June 12, 1994, and February 23, 1996, among others.”
The problem is that one cannot
separate who may convene the meeting from how it must be convened, without
disrupting the coherence of the provision. If the legislature had wanted to
allow direct convocation in 1960, it would have done so explicitly and would
not have used the verb “request” — request from whom, if they can do it
themselves? — in paragraph 1, nor would it have used “failing that” instead of
“where appropriate” in paragraph 2. Furthermore, the claim that the Supreme
Court decisions cited support this view is inaccurate, as those rulings —contrary
to what Section 13 and others assert— actually state the opposite:
- The STS of June 12, 1994, is misquoted, as no
such judgment exists on that date (a Sunday). The only three rulings that
day by Justice Francisco Morales relate to promissory note actions based
on unjust enrichment.
- The STS of December 9, 1993, concerns a case
where there was no refusal but rather a very long delay by the president
in convening the meeting, which he ultimately did, including the agenda
items requested by the owners promoting the meeting. Meanwhile, those
owners remained inactive and never convened the meeting due to the delay. Thus,
the ruling actually supports the opposite interpretation.
- The STS of February 23, 1996, deals with a case
where the issue was not about direct or subsidiary standing, but whether
the meeting had been validly convened by owners representing 25%, and
whether it had been called within the legal time frame, in a context where
the president opposed being removed from office.
This conflict among sections of the
Madrid Provincial Court can also be found, for instance, within sections of the
Alicante Provincial Court. For example, Section 5 (Judgment 181/2018, of April
18) supports the view that owners’ standing is subsidiary, while Section 9
(Judgment 316/2014, of June 18) has supported the direct standing theory,
asserting that no prior request is necessary.
Amid this controversy, I side (as
is already clear) with the view that owners' standing is subsidiary, because,
as noted by the Las Palmas Provincial Court, Section 5, Judgment 116/2022 of
February 11:
“As a general rule, the Horizontal
Property Act assigns the authority to convene the meeting to the president
(‘the president shall convene the meetings’), meaning that the law allows
owners to request the president to call a meeting, as he holds that power under
the law. The president may comply or not, and only then, if he refuses or
remains inactive, may the qualifying owners act, as implied by the meaningful
phrase ‘failing that’ in Article 16.2 of the Act. This clearly suggests that if
the president does not issue the convocation, then—and only then—in his
absence, the owners may do so”.
It also states that the president's
inactivity can be express (a refusal), tacit, or even presumed, based on
circumstances indicating that, under the community’s current situation, the
president is unlikely to act—even if no request has been formally made—and that
such circumstances must be substantiated.
And this is precisely the
interpretation reaffirmed by the above-cited STS 867/2025, of June 2 —a mere
reiteration of consistent doctrine —which clearly states:
“The interpretation that the
convocation of the owners’ meeting corresponds primarily to the president and
only subsidiarily to the promoters of the meeting —provided they comprise
one-quarter of the owners or represent at least 25% of the ownership shares— in
the event of the president's inaction, is the most consistent with the literal,
systematic, and functional reading of Article 16 of the LPH.
The first paragraph, stating that
the meeting shall be held when requested by one-quarter of the owners or by a
group representing at least 25% of the shares, does not grant this minority a
direct power to convene. It merely allows them to request the meeting. The verb
used—‘request’—implies a petition, not an executive act, and necessarily
presumes a recipient, who can only be the president, as the one ordinarily
empowered to convene meetings under the express wording of paragraph two. This
second paragraph clearly and unequivocally states that ‘the meeting shall be
convened by the president, and, failing that, by the promoters of the meeting.’
The phrase ‘failing that’ is not an empty formula or mere stylistic choice: in
legal language, it has a clear technical meaning, indicating subsidiarity—that
is, empowering a secondary actor to act only when the primary one does not.
Therefore, the promoters' authority
to convene is not direct, but conditional on the president’s prior inaction.
This conclusion is not weakened by
hypothetical concerns about deadlock, passivity, or conflicts of interest
involving the president. These risks, while conceivable in practice, are
already accounted for and resolved by the structure of the provision: once the
promoters meet the proportional requirement (a quarter of owners or 25% of
shares), they may request the president to convene the meeting. If the
president unjustifiably fails to do so within a reasonable time, the promoters
are then subsidiarily authorized to convene it themselves. This ensures the
system remains functional without disrupting the legal framework that assigns
the central role in convening to the president.
Conversely, allowing immediate,
direct convocation by the promoters without prior request would not only
undermine the institutional role of the president but would also render
meaningless the expressions ‘request’ and ‘failing that,’ breaking the internal
coherence of the article.
Furthermore, the exceptional
provision allowing meetings without prior convocation in the case of a
universal meeting—as per paragraph three—confirms, by negative inference, the
general rule: except in that unique situation, the right to convene lies with
the president—unless by judicial order—and only subsidiarily with the
promoters, in case of inaction. Properly interpreted, Article 16 provides a
balanced model that respects the representative role of the president,
recognizes the qualified minority’s right to initiate action, and offers an
effective remedy against presidential inaction, all without distorting or
altering the legislative text.”
Nothing further needs to be said on
this specific point. There are, of course, all the legal requirements for the
validity of such convocations and the proper holding of meetings by the
owners—but that is another matter.
José Ignacio Martínez Pallarés
Lawyer
