In the complex landscape of Colombian property law, residents often find themselves at odds with administrative decisions that impact their personal finances and property value. From controversial structural changes in building regulations to stalled maintenance projects, the management of common areas and extraordinary levies has become a frequent flashpoint for conflict.
This article addresses two critical scenarios recently brought to light by property owners: the legality of unverified extraordinary fees for structural unifications and the complex process of reclaiming funds for stalled improvement projects.
1. The Challenge of Unverified Extraordinary Fees: A Structural Conflict
One of the most pressing concerns for owners involves the imposition of extraordinary fees by property administrations to fund large-scale structural changes—such as the legal unification of building towers with neighboring complexes.
The Core Problem
Property owners frequently question the legitimacy of these fees when they are accompanied by a lack of transparency regarding legal processes, professional contracts, and the methodology of fund collection. A common question arises: Can an administration withhold a "paz y salvo" (certificate of good standing) if a resident refuses to pay a fee they believe to be illegal?
Legal Framework and Procedural Requirements
Under the Ley 675 de 2001, which regulates horizontal property in Colombia, any modification to the legal status of a building—such as forming a "Unidad Inmobiliaria Cerrada" (Closed Real Estate Unit)—is not a simple administrative task. It is a profound structural modification.
- Due Diligence: Administrations cannot unilaterally decouple towers or merge them with other legal entities. This requires a rigorous review of property titles, existing regulations, and the approval of all involved parties in both complexes.
- Assembly Authority: Any extraordinary fee must be approved by a properly constituted General Assembly. If the meeting was convened without sufficient quorum, or if the majority vote was achieved through irregular procedures, the resulting financial obligations can be challenged.
The Transparency Imperative
Administrative transparency is non-negotiable. If an administration claims to have paid $18,000,000 to a legal advisor, the owner has a fundamental right to demand the contract, proof of payment, and a report on the specific services rendered. Consigning common funds into personal accounts, rather than dedicated corporate accounts, is a major red flag that warrants immediate investigation by the Revisor Fiscal (Fiscal Auditor).
2. Chronology of Disputes: When Projects Stall
The second scenario involves the mismanagement of funds for projects that never come to fruition. A common case involves the proposed upgrade of utility meters in large residential complexes (e.g., 280 units) without proper technical studies.
- Phase 1: The Proposal. The administration presents a project to the Assembly, often emphasizing the "necessity" of an upgrade. An extraordinary fee is approved.
- Phase 2: The Stagnation. If the project lacks a technical foundation, it often fails to gain the necessary individual authorizations from owners. The project hits a wall, and funds sit idle.
- Phase 3: The Misuse of Assets. In many instances, the interest earned on these stagnant funds is diverted to cover other operational deficits without the Assembly’s express permission, leading to a breach of trust.
3. Supporting Data and Regulatory Standards
To navigate these disputes, it is essential to categorize the nature of the expenditure. The Superintendencia de Servicios Públicos provides clear guidance on the differentiation between common and private goods.
Key Regulatory Considerations:
- Separation of Duties: The administration must provide a clear accounting of the funds. If the fee was for a specific, identifiable project, those funds are "earmarked." They cannot be commingled with the general administrative budget unless the Assembly explicitly authorizes a reallocation.
- The Right to Information: Residents have the right to request a full audit trail. This includes bank statements, contracts, invoices, and vouchers. If this information is denied, the administration is effectively acting in bad faith.
4. Official Responses and Remedies: A Roadmap for Owners
When facing an arbitrary administration, owners must move from frustration to strategic action. The following steps are recommended:
Step A: Formalize the Inquiry
Do not rely on verbal promises. Use the Right of Petition (Derecho de Petición). While horizontal property entities are private, this legal mechanism forces the administration to respond in writing, creating a paper trail that is essential if the case proceeds to a judicial level.
Step B: The Role of the Assembly
The General Assembly is the supreme governing body. If a project is no longer viable, the Assembly must vote to:
- Formally cancel the project.
- Determine the destination of the remaining funds (reimbursement vs. credit toward future fees).
- Assess the performance of the administrator.
Step C: When to Escalate
If the administrator refuses to provide information or if the Council of Administration is complicit in the mismanagement, owners representing at least 20% of the co-ownership coefficients have the legal power to convene an Extraordinary General Assembly.
5. Implications: The Path Forward
The implications of these disputes are significant. When administrations bypass legal requirements for structural changes or treat collected funds as discretionary assets, they jeopardize the legal stability of the entire property.
Protecting Your Investment
Property owners must recognize that they are not just "tenants" or "passive members" of a complex; they are shareholders in a legal entity.
- Impugnation: If an assembly decision violates the law or the property’s bylaws, it can be impugned in court. However, this must be done within the timeframes established by law.
- Mediation: Before engaging in costly litigation, centers for alternative conflict resolution (Centros de Conciliación) are often more effective in forcing an administration to the table to account for the funds.
Final Recommendation
The "Paz y Salvo" should not be used as a tool of coercion by administrators to silence legitimate questions regarding financial irregularities. If a fee was approved in violation of the law, the obligation is legally contestable.
Owners should always seek independent legal counsel specialized in Propiedad Horizontal before withholding payment, as unilateral suspension of payments can carry its own risks. The priority must always be: verify the documentation, demand transparency, and utilize the power of the Assembly to rectify mismanagement.
Summary Checklist for Concerned Owners:
- Verify the Act: Review the minutes of the Assembly where the fee was approved. Was the quorum met?
- Request Documentation: Demand the contract, the professional’s credentials, and the bank account details.
- Check the Bylaws: Ensure that the proposed structural change (e.g., merging towers) is permitted by the building’s original registered regulations.
- Consult the Revisor Fiscal: If the internal auditor is silent, report the irregularity to the Superintendencia de Industria y Comercio or the relevant local authority.
- Organize: Connect with other owners. A single voice can be ignored, but 20% of the ownership coefficients represent a powerful, legally recognized force.
Disclaimer: This information is provided for educational purposes based on general principles of Colombian Property Horizontal Law (Ley 675 de 2001). For specific legal disputes, it is highly recommended to consult with a qualified attorney specialized in Real Estate Law.
