Selling a home does not always automatically end the obligations to the homeowners' association. For example, if after selling my apartment I do not inform the community of the change of ownership, it can claim the fees generated after the transaction, even though I am no longer the owner of the property.
This is established by article 9.1.i of the Horizontal Property Law, indicating that the secretary of the community must be informed through a system that allows for the receipt to be accredited.
The non-compliance has a specific consequence, which is that the seller would continue to be jointly liable with the buyer for the community debts incurred after the transfer until they are paid, after which they can be claimed from the new owner.
What does "jointly" mean?
Joint liability allows the community to claim the total debt from the new owner, from the seller who did not communicate the transfer, or from both simultaneously. It is not required to first claim from the buyer.
For example, if after the sale there are several pending monthly payments, a special assessment, or a contribution to the reserve fund, the community can direct the claim against the former owner if they failed to fulfill their duty to inform.
The liability does not make the seller the owner again. The ordinary obligor for the payment of the fees accrued after the transaction is the buyer, but the law extends the liability to the transferor who did not inform of the change.
If the seller pays a debt that belonged to the new owner, they can subsequently demand the return of the amount paid. This is the so-called right of repetition recognized by article 9.1.i itself.
In what cases would the former owner not be liable?
The Horizontal Property Law contemplates several exceptions. The seller will not be jointly liable when it can be proven that the community was already aware of the change of ownership, even if it had not received a formal communication.
Liability also does not apply when the new owner has performed acts that clearly demonstrate that the community was aware of the transfer. Relevant indications may be that the buyer has identified themselves to the administrator, has begun to pay the fees, receives communications, or participates in meetings as an owner.
The third exception appears when the transmission is notorious. The application of this assumption will depend on the circumstances and the available evidence, so it is not advisable to rely solely on the fact that the neighbors or the president informally know that the property has been sold.
It should be noted that registering the property in the Property Registry does not replace the formal communication to the community. The obligation falls on the one who transmits the property or the premises and must be fulfilled directly before the community.
To sign the deed, the seller must declare whether they are up to date with payments and present a certificate issued by the community, unless the buyer expressly exempts them. However, that document reflects the existing situation before the transaction and does not necessarily certify that the sale has been finalized nor identifies its definitive date.
How to correctly communicate the sale?
The law does not impose a specific form. It requires that the change of ownership be communicated to whoever performs the functions of secretary by any system that allows for a record of its receipt.
The communication can be delivered in person, keeping a signed or stamped copy, or sent by burofax. An email can also be used if it is proven that the secretary or administrator has received it.
The written document should include, at least:
- The identification of the former owner.
- The property, premises, garage, or storage room transmitted.
- The date on which the transmission occurred.
- The identity of the new owner.
- A contact address or means.
- The request for confirmation of receipt.
In many communities, the secretary is also the property administrator. If there is no independent position, the functions of secretary default to the president, unless the community has arranged for another organization.
What happens if the apartment has debts?
The fees generated before the transmission remain the personal responsibility of the one who was the owner when they became due. The communication of the change of ownership does not eliminate those debts.
The buyer must also pay attention. Article 9.1.e of the Horizontal Property Law establishes that the acquired property is liable for the outstanding amounts corresponding to the due part of the year of purchase and the three previous calendar years.
This explains the importance of the debt-free certificate before signing the purchase agreement. The document must be issued within a maximum period of seven calendar days from its request by the person performing the functions of secretary, with the approval of the president.
What to do if the community claims against the seller?
The former owner must first check if they can prove that they notified the sale or that any of the governing bodies of the community were aware of the transfer. A stamped copy, a burofax, a response from the administrator, or the actions of the new owner may be relevant.
If that proof does not exist and the community was unaware of the change, the claim for subsequent fees can be legally directed against the seller and the buyer jointly. The payment made by the former owner does not prevent them from later claiming that amount from the current owner.