Associate Lucía Martín
Consortium Legal – El Salvador
1525, the year in which the city of San Salvador was founded under the orders of Pedro de Alvarado, in Las Bermudas Valley, a place located between the city of Suchitoto and the city of San Pedro Perulapan. At this moment, you may probably be thinking “Las Bermudas Valley? That place does not ring a bell to me, I thought that San Salvador was founded where our current historical city center is located.” The answer is both yes and no at the same time. The original settlement of the city of San Salvador was not our current city center; it was located in an archaeological place known as Ciudad Vieja, in the department of Cuscatlán. This original settlement was originally a Native American settlement, which was later colonized by the Spaniards, who lived in this city for a brief period of 18 years. Our current city center is the place where our capital was re-established after the first San Salvador settlement.
As in many cities of Europe and Latin America, our city center is was where most of the important and emblematic buildings were located, and also the place around which the life of the citizens of such city revolved. However, due to the growth of our population, the city expanded itself, but in contrast to other capital cities such as Guatemala City, the expansion of the city of San Salvador was horizontal, not vertical. The problem with the horizontal expansion was that there was a moment where there was no other plots of land in which to expand, build houses and office spaces which were not “too far” or that were not located “outside the City”.
About ten years ago, the San Salvador skyline and landscape had very few apartment or office buildings, but during these last few years, more and more skyscrapers have been built as a solution for the lack of space. The solution to continue living “nearby” or within centric areas of the city, such as San Benito or Colonia Escalón, was the vertical expansion of San Salvador.
The vertical expansion means the cohabitation of different people that live or work in the same building, and as we all know, cohabiting with other people who are not necessarily our family and friends can be difficult. This is why it is critical to regulate certain aspects of a building that is shared within various people, whether for residential, commercial or office use, and delimit the uses of the building, the permitted behaviors or norms, the private and common areas such building, within others. The condominium regime is the most recommendable framework for these type of buildings. Incorporating a condominium regime allows the joint owners or residents of the building to define which areas of the building are considered private areas and which areas are considered common areas, as well as the rights and obligations for each joint owner or resident, so that everyone can understand the rules of the game.
In El Salvador, the applicable legislation for condominium regimes is the Salvadoran Horizontal Property Law, approved by Decree N°31 date February 21st, 1961. Furthermore, the Salvadoran Law on Territorial Organization for the Metropolitan Area of San Salvador (“LOTAMSS”), and its applicable regulation (“RLOTAMSS”), are applicable to the Metropolitan Area of San Salvador (“AMSS”), which includes the municipalities of Antiguo Cuscatlán, Apopa, Ayutuxtepeque, Cuscatancingo, Ciudad Delgado, Ilopango, Mejicanos, Nejapa, Santa Tecla, San Marcos, San Martín, San Salvador and Tonacatepeque. The LOTAMSS and the RLOTAMMS regulate all the permits that must be requested and obtained by the developer of any real estate project, as well as certain characteristics which the real estate projects must comply with, depending on the use of the building. These regulations also require that, prior to executing any real estate project, pre-feasibility studies, ANDA permits, and other type of approvals need to be requested and obtained. IN addition, a study on the environmental impact and obtaining the environmental permit can be requested by the corresponding authorities, pursuant to the Salvadoran Environmental Law. We will discuss and explain the permits needed to be obtained by the developed of any real estate project in order to execute a building in a future article. For now, we will focus on the constitution of the condominium regime.
The condominium regime can be incorporated either before a building is executed or once the building has already been completed. For clarity purposes, when we refer to a building, we are referring to a vertical construction, but this regime is equally applicable to the horizontal real estate development projects, like housing development or a shopping center.
- Incorporation of a condominium regime before the building has been executed
In the event that a building has already been executed, the owner or developer of the building will need to carry out the following steps in order to incorporate the condominium regime:
- Grant the Public Deed of the incorporation of the Condominium regime before a public notary. This public deed needs to include the description of the plot of land in which the condominium will be incorporated, as well as the description of the different units that will be part of the building, including the number of every unit, the area of each unit, the cubic measure, and the proportional value of each unit with respect to the total value of the building. Furthermore, the public deed must also include a description of those areas that will be for common use, as well as those areas which will be of private use. Finally, the applicable law also requires that public deed to include the general use of the building, as well as the specific use for each of the units within the condominium. The public deed can also include other clauses that the owner deems appropriate.
- The owner or developer of the building where the condominium is going to be constructed must also draft and grant the administrative regulation that will be applicable to the condominium. This administrative regulation must be granted in a public deed, before a public notary, and must include at least, the following clauses, notwithstanding the fact that the owner or developer of the building may choose to include additional clauses:
- The use of the common areas and spaces within the condominium.
- The percentage and the quotas of each of the units to the common expenses.
- The requirements to be appointed as administrator or deputy administrator of the condominium, as well as the causes for the removal of the condominium administrator.
- The remuneration of the administrator of the condominium.
- The faculties and powers to be granted to the administrator of the condominium.
- The term in which the administrator of the condominium must issue a management report, which must be at least once a year.
- The condominium owners’ general assembly, as well as the way in which these meeting will be called upon and the term in which they will take place.
- The quorums and majorities required to celebrate a condominium owners’ general assembly, and the voting majorities.
- Once the public deed of the incorporation of the condominium as well as the public deed of the administrative regulation have been granted, the owner or developer of the building must file them before the Salvadoran Land Registry, along with three copies of the architectural, structural, electric, and hydraulic plans of such building, duly approved by OPAMSS. The corresponding architect or civil engineer overseeing the real estate project must also sign and stamp all the project plans that are going to be filed before the Land Registry.
- Once the building has already been constructed, the certification issued by OPAMSS approving the construction and the right to use the building must also be filed before the Salvadoran Land Registry.
In this case, the Art. 3 of Salvadoran Horizontal Property Law establishes that the condominium will exist as from the moment in which any in rem right is granted (property, usufruct, leasing, and/ or liens) over part or the entire building, or as from the moment in which any unit is sold or transferred to any third party.
- Incorporation of the condominium regime once the building has been executed
In the case that the condominium regime is incorporated once the building has already been executed, and all the construction permits issued by the OPAMSS have already been obtained, the owner and developer of the condominium must file the following documents before the Salvadoran Land Registry, in order to register the condominium:
- All the project plans which were duly filed and approved by OPAMSS.
- A certification issued by OPAMSS, which certifies that the construction of such building has been approved.
- The permit to use the building, issued by the corresponding town hall.
- The copy of the public deed that must be granted by the owner or developer of the real estate project, which includes the description of the plot of land in which the condominium will be incorporated, as well as the description of the different units that will be part of the building, including the number of every unit, the area of each unit, the cubic measure, and the proportional value of each unit with respect to the total value of the building. Furthermore, the public deed must also include a description of those areas that will be for common use, as well as those areas which will be of private use. Finally, the applicable law also requires that public deed to include the general use of the building, as well as the specific use for each of the units within the condominium. The public deed can also include other clauses that the owner deems appropriate.
- The administrative regulation which will be mandatory for all of the owners and their successors, and which must include the clauses set forth in the previous section of this article.
Once the condominium regime has been granted, every owner or tenant of any local premises or unit will enjoy certain rights but will also have certain obligations, such as the payment of the maintenance quota, used to cover the maintenance and expenses of the common areas. Each condominium owner will also be able to enjoy both its own private area, which is comprised of the unit itself and any parking space or storage unit attached to such unit, as well as the common areas of the building, which may include the a pool area, a terrace, a game room area, conference rooms, within others. The goal of the common areas within a condominium, besides guaranteeing the functionality, existence, safety and preservation of the condominium, is allowing the different owners and tenants of the condominium to interact between one another, and develop relationships.
Besides all of the other rights and obligations that the condominium owners and tenants might have in accordance with the Salvadoran applicable regulations and the provisions of the administrative regulation of the condominium, the most important obligation is to respect and comply with the condominium’s administrative regulation in order to avoid any inconveniences between the neighbors, as well and to be able to live together peacefully with the rest of the neighbors. In the event of any problem between the condominium owners and tenants, or with the condominium’s administration, there are some legal actions foreseen in the applicable regulations, which in practice are not commonly used to enforce these obligations, especially the payment of the maintenance quota. These legal actions are not commonly used in practice because the execution of the same before the competent courts and tribunals is complex. Nevertheless, these legal actions are available to the owners and tenants of a condominium.
In our experience, an amendment of the current Salvadoran Horizontal Property Law would be desirable, in order to update and adapt the law to the current needs of the condominium regime. We would suggest the amendment to include new legal actions that can be easily exercised before the competent courts and tribunals, for any breaches of the condominium regime, the administrative regulation or for any disputes between the condominium owners and tenants, as well as between the condominium owner and tenants and the condominium’s administration. Nevertheless, as of today, without any foreseeable amendment of the Salvadoran Horizontal Property Law, our advice is for the owners or developers of a condominium regime real estate property regulate all their relations accordingly.
If the vertical solution had been thought of and implemented before, during the expansion years of the city of San Salvador, we, its citizens, would have had a historic city center which we would go to more often and in which we would have been lucky to live or work in; not a city center which until around two years ago was nearly impassable. The suggested amendment to the Salvadoran Horizontal Property Law would change the vision that many have of our current city center, which for many years has been a dangerous place, which is so important and essential for the citizens of the capital city and for every Salvadoran.
 ANDA is the Salvadoran water management entity.