Standing of the President of the homeowners’ association to claim for the damage and defects in both individual homes and communal areas
In homeowners’ associations with communal areas and various individual units, where there are construction defects in all of them, the question arises as to whether the President of the homeowners’ association has standing to sue for all the defects on behalf of all the co-owners.
- Under the Horizontal Property Act (LPH), the President has standing to defend in court not only the interests of the homeowners’ association but also those of individual owners, and case law is clear in granting the President full standing to bring this type of action on behalf of the association, so as to avoid proceedings involving countless individuals, all of whom the President can represent.
Where the extension of that representative mandate to individual interests is disputed, case law indicates that account must be taken of the general principle that the President is thereby bringing undeniable benefits to those co-owners, which must be upheld unless there is an express or formal objection preventing the President from defending those interests on their behalf – see, among others, the Supreme Court judgments of 3/2/83, 23/11/84, 12/2/86, 7/12/87 and 9/2/87.
This is what our Supreme Court has established: the President of a homeowners’ association has standing to claim not only for damage to communal areas but also for damage to private elements, unless an owner expressly objects to the claim for the damage to their particular home.
Likewise, the unanimous agreement of all the owners is not required to claim for damage to communal areas, nor is standing in respect of private elements held solely by the individual owners, because, as we have stressed, the Supreme Court has established:
“The standing of the homeowners’ association, acting through its President, to defend the rights of the association itself and of the individual co-owners cannot be disregarded and must be accepted, even where there is no specific resolution to take action, as the Supreme Court has held in expressly accepting such standing of the association through its president (judgments of 23 January 1991 and 8 January 1992), even where private elements are also affected (judgment of 24 October 1991), or where there are formal defects in the constitution of the association or in the power granted to its President; it is also possible for any of the co-owners, or a group of them, to act for the common benefit (judgments of 28 October 1991 and 9 July 1991), to make up for the inaction of the President or the other co-owners, even where the latter are opposed to the litigation (judgment of 2 October 1992).
For all these reasons, the standing of the President of the homeowners’ association is clear for the claim for defects in both communal areas and private elements.
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