THE HORIZONTAL PROPERTY:

Horizontal Property Definitions

It is the legal figure of a civil nature, consisting of the set of rules that regulate and
organize a special property right, due to the coexistence of a singular property
corresponding to each of the independent units of a building or property that may
belong to different owners. and a common property of the common parts or elements in
an aliquot and undivided manner, which has its own characteristics that individualize it.

Regarding the existence of an individual private property right and another of

condominium property, it can be stated that horizontal property is a type of sui generis
property that gives rise to a new legal figure, as it is a mixed property, in which coexists
singular property and co-ownership. ( Bonilla González de Jiménez, Norma Aracely,
Horizontal property in Guatemala City. p. 22. )

López Taracena states: “It has been called horizontal property because it is a property
located on the same land with several floors or horizontal planes. It always refers to a
multi-level building. The building is built vertically, but its division cannot be other than
horizontal, that is, into floors or levels, apartments and rooms. The right of property is
limited by horizontal planes.” 38 López Taracena, Ob. Cit, p. 22

Horizontal property: Within the Guatemalan legal system there is no legal definition, but
only the elements that the legislators considered necessary for the realization of the
legal assumption that will determine the existence of the horizontal property regime are
described, as established by the Civil Code. Decree Law 106, Article 528 (Article 18 of
Decree Law 218).- “The different floors, apartments, rooms of the same building with
more than one floor, susceptible to independent use, may belong to different owners
separately or in condominium. , as long as they have access to a public road or to a
certain common space that leads to said road.
Legal Regulation:

 Civil Code Decree Law 106 reformed by Decree Law 218

Within this legal instrument, Decree Law 106, which was reformed by Decree Law
218, determines the set of legal norms that serve as the basis for the horizontal
property regime in Guatemala, from its constitution to its demise, if applicable. This
legal regulation is based as mentioned above in the second book of the Civil Code,
called:
Of assets, property and other real rights,
Title II Property
Chapter III Co-ownership
Title III Horizontal property.
From Article 528 to Article 559, regulating different aspects in this way.

Other provisions relating to the regime in the Civil Code Decree Law 106: Within the
current Civil Code there are some Articles outside of book II Property assets and
other real rights, title II Property, chapter III Co-ownership, paragraph III Horizontal
property , which have already been referred to in the previous section, which contain
rules that regulate some aspects that relate the figure of horizontal property with
other legal figures of civil law, such as mortgage and registration in the property
registry, which are presented below:

Book II Of assets, property and other real rights.

Title V Real rights of guarantee.
Chapter I, mortgage.
Susceptibility to mortgage: Article 840. This Article regulates the situation in which
the building that is subject to the horizontal property regime can be mortgaged in its
entirety, provided that this determination is made by unanimous resolution of all the
owners of the building units. It can be mortgaged separately by the owner of the
single or independent apartment or property. If the entire building is mortgaged, the
 proportion or part of the liens assigned to each floor of the building must be
determined.

Another book of the Civil Code, which contains rules related to horizontal property,
is:
Book IV of the Property Registry.
Title II, Special registrations.
Chapter IV Horizontal Property Registry.
Within this chapter, certain rules are established regarding the registration of
horizontal property, the establishment of which is necessary for the best
development of the regime and application of the legislation related to the matter. In
this regard, this matter was regulated in Articles 1195 to 1205 of this legal
instrument.

 Law of horizontally divided property Decree number 1318 of the Congress of the
Republic of Guatemala
Decree 1318 was partially repealed due to the replacement of some of its
regulations by Decree Law 106, which contains the Civil Code of 1963 reformed by
Decree Law 218.

Legal nature of horizontal property

Establishing the legal nature of horizontal property is complicated by the different
theories that exist in relation to this topic in the doctrine of law and requires their
analysis, together with a study of the development of the legal figure within the
background in the legal system. Guatemalan. Among the different theories that provide
guidelines and theoretical framework to the institution, two major divisions are
distinguished, which are presented below:

• Traditionalist theories : They conceive horizontal property as a special figure, which

has developed from another existing legal figure such as easement, co-ownership and
ownership.
• Modern theories : On the other hand, modern theories give horizontal property its
own elements and characteristics that allow its total differentiation with other civil law
institutions.

 Traditionalist theories:

- Bondage theory:
This theory considered that horizontal property was a type of easement in which
each owner of the independent units was the holder of a property right over the
unit that belonged to him by this right and the common parts.

Criticism: If the legal figure of horizontal property is carefully studied, it cannot be

identified with an easement, due to the existence of an exclusive right over the
units, which serves the owners by right of property and not by easement.
As for the co-ownership of stairs, patios, drains and others, it cannot be identified
with the easement either, because use is not made of them by virtue of a lien or
concession from another owner; rather, this power over them is exercised by own
right obtained from co-ownership. These common areas belong by property to
those who use them, not by encumbrance on another person's property.
Samayoa, Ob. Cit., p. 19

- Theory of legal personality in co-ownership:

This doctrine considers as a characteristic and fundamental element of the legal
figure of horizontal property, the legal representation with which the owners of the
independent units act. They maintain that horizontal property is a co-ownership in
which the owner of the right is a legal entity, made up of the board of owners that
makes up the legal personality that makes the exercise of rights and obligations
feasible. Samayoa Serovic, Ob. Cit. , p. twenty .
Criticism: It can be started by remembering that the board of owners does not act
as the owner of the property right within the horizontal property regime, but only
on behalf of the owners of all the individual units, they do not act on behalf of a
different legal entity. Within Guatemalan legislation, this board of owners makes
administrative decisions that are executed through the board of directors, so only
as its name suggests, it has the power to decide on matters related to the
administration of the property. For reasons of convenience and better execution,
the board of directors delegates legal representation to a person so that they can
acquire rights and obligations; as well as being in charge of executing decisions
made by the board of directors.

- Theory of society:
It maintains that horizontal property must be conceived as a voluntary society,
(Martínez Cerna, Brenda Margarita, Co-ownership as a special
manifestation of domain, page 12 ) in which the member partners are the
owners of the singular units of a building and the Capital is not represented by
shares, but by property titles on independent units that belong exclusively to the
owners and the common use assets of the partners but that are ultimately the
property of the company. This theory had its origin in societies and cooperatives
dedicated to the construction of buildings for housing their members in the United
States of America and England.

Criticism : When a person acquires a singular property in a building subject to the

horizontal property regime, he does not do so with the desire to integrate a
society, because his objective is to acquire a property that satisfies his need for
housing, even if this forces him to do so. to submit to being co-owner of the
common elements. Another element that makes it impossible to identify the
horizontal property regime with the company is the fact that it is not possible that
within the assets part of the assets of a company there are assets that belong
exclusively to the members, such as independent units of the company. building.
 - Special property theory:
This theory focuses its attention on the individual property right of each owner
over their independent unit, although it does especially recognize the
particularities of horizontal property that prevent it from being considered
common or ordinary property.
Such particularities are:
In horizontal property there is a coexistence of singular property and an
accessory right of co-ownership. In property there is only a singular and exclusive
right over an asset.
The horizontal property is limited by the horizontal planes of each floor or
premises. Ordinary property extends to the entire surface.
In horizontal property due to the plurality of singular properties, the rights and
obligations are of two kinds; as private owners and those who depend on the use
and enjoyment of the common elements. In common property there are only
rights and obligations as private owners.
In horizontal property there are limitations that depend on the rights of the other
owners of their apartments or premises. In ordinary property there are no
limitations other than those established by law.
Zanon Masdeu, affirms in this regard that horizontal property has a clearly
defined category of true institution that has not been created by the legislator, but
has been created by the reality of things. Samayoa Serovic, Ob. Cit., p. 31.

 Modern theories:
Within the theories developed in the legal doctrine of the evolution of horizontal
property, two main ideas have been provided regarding the legal nature, on the one
hand the so-called monist theory that considers horizontal property as a form that
arises from the evolution of the property. On the other hand, there is the dualist
theory which considers the identification of horizontal property as a “sui generis
institution” because there is a singular property over the private parts and a co-
ownership related to the common elements of the building.
 - Monistic or unitary theory:
This theory is so called because it takes as its foundation the unity and
indivisibility of the object of the right of horizontal property, which is one
consisting of the property.
The fact that each owner is the owner of the exclusive use of his independent
unit is a derivative of the shared ownership of the building, whose community
causes limitations for each owner in his independent unit since for the total
functionality of each unit it is necessary to use of the common elements. It is
important to highlight within the definition of horizontal property, the fact that a
voluntary community also coexists at its origin; Because no one can force
another to acquire a good under this regime, its acquisition is voluntary, although
there is currently a lack of knowledge of the rules that regulate the regime and
what it means to submit to it. But it is also a forced community due to its
permanence, since there is no possibility of dividing the common thing, so
whoever wishes to do so can only dispose of their property through their position
in the community, not the object, the building.

Criticism : the monist Theory does not take into consideration that the right that
each owner has over his independent unit, which is not only a right of use and
enjoyment but has a true proprietary status” Samayoa Serovic, Ob. Cit., p. 3. 4

- Dualistic theory:
It is based on the existing duality of rights or the fusion of two legal figures such
as ownership and co-ownership, since, as has been studied, the horizontal
property regime is composed of two rights, one of ordinary property over the
apartment or premises and the other of co-ownership. on commonly used items.
They assign to the right of individual property, an accessory right consisting of
the co-ownership of the common elements, since to be its owner, it is necessary
to acquire individual property.

 Theory adopted in Guatemalan legislation:

 In the Guatemalan civil system it has been established that in the horizontal property
regime, the ownership of the apartment or independent unit belongs to the owner
thereof, however at the same time there is co-ownership of the elements that enable
or make possible the operation and use. of the building subject to the horizontal
property regime. In the same way, it has been established that these common
elements must remain or be maintained in co-ownership throughout the regime, that
is, in this way the undivision of the common elements is established according to
what Articles 553 and 554 of the Civil Code Decree literally prescribe. Law 106
presented below:

“Article 553.- Each t Itular is the exclusive owner of his apartment and co-owner of
the common elements of the total building. “In addition to the land, common
elements are the things necessary for security, conservation and general services
for the use and enjoyment of the entire property and each floor.”
“Forced indivision. Article 554.- The common elements and parts must be
maintained in forced indivision, while the horizontal property regime lasts, any
agreement to the contrary being void.”

It is also established that matters relating to the private parts will be regulated by the
provisions of ownership and the common parts will be regulated by the provisions of
co-ownership. In conclusion, regarding the legal nature of horizontal property, it is a
legal institution that the Guatemalan Civil Code has not considered a single theory,
since it could be said that because it is regulated in title II Of property, chapter III Of
co-ownership, it would be considered as a Special Form of Property .

Formalities to establish the horizontal property regime:

It must be established by public deed, as established in article 531 of the Civil Code
Decree Law 106.
ARTICLE 531. The horizontal property regime must be established by public deed,
which must be registered in the Real Estate Registry.
The articles of incorporation must contain the following requirements:
1. Declaration by the owner or owners to subject the property they own to this regime;
2. Location, measurements and boundaries of the land, as well as a total description of
the building and mention of its water, electricity and any other services it may enjoy;
3. Description of each floor with the data necessary for its identification;
4. The value of the property and that of each apartment;
5. Description of the common elements and parts of the building and of the common
elements and parts limited to independent units; and
6. Any other information that the grantors consider appropriate.

Elements of the horizontal property regime

The elements of the horizontal property regime are fundamental circumstances that
make possible the existence and proper functioning of the horizontal property regime,
generally established in doctrine and especially in the legal system. Among the
elements that are considered essential we can mention:

 The exclusive elements:

Which are made up of the different floors, apartments and rooms of the building
belonging to the different owners, are legally established together with the horizontal
property regime in Article 528 of the Civil Code and Article 1 of the Horizontally
Divided Property Law, Decree 1318 of the Congress of the Republic, which was
currently repealed but regulated by the Civil Code Decree Law 106.

 Common elements:
Which are all those elements and services that are essential for the functionality of
the independent units, that is, useful for the conservation, security, use and
enjoyment of the entire property, for example wells, cisterns, ducts, load-bearing
walls, foundations. , land, etc.

Other elements:
  Common expenses:
They are all those monetary disbursements destined for the operation, conservation
and ordinary and extraordinary repair of common areas and things with the objective
of preserving the proper functioning of the building, among which insurance, fees,
excise duties and taxes are included, an obligation that is established in Article 545
of the Civil Code Decree Law 106.

 Administration:
It is the essential functional element for the execution of the administrative functions
of the regime, within the civil order it is regulated what is related to its organization,
the way of operating and executing the administrative provisions, according to Article
559, Decree Law 106.

 Insurance:
Element constituted by the legal obligation established in the Civil Code Article
552 Decree Law 106 to fully insure the building against risks, without prejudice to the
particular insurance that must be recorded in the respective deed of incorporation.

Subjects that make up the right of horizontal property

Specifically, it refers to the owners and condominium owners, and for these it can be
defined in a better way when their rights and obligations are established. In this way, as
for the rights, any individual or legal person can exercise them and can have the status
of owner of a horizontally divided property right over an apartment, apartment or room,
as long as he or she has the civil capacity to be the owner of rights and obligations.

Rights and obligations of owners

At the time of constituting a property under this regime, rights and obligations are
contracted, some established in the Law and others contracted through internal
regulations. Among the rights and obligations that the law regulates are:
  Regarding your apartment or premises. To the owner, although subject to
limitations. Thus, it has a limited power of use and enjoyment in terms of the
activities to be carried out.
They can modify their apartments and premises, although when the reform is
internal it cannot harm another owner, nor the community, nor alter the structure
of the building or its security, and must notify the community representative in
advance.
Also, they can divide, group, segregate. By being the owner of a separate
property on an apartment or premises, you can transfer and dispose of it, but
without separating the common elements; You can also mortgage your
apartment or premises.

 Their obligations are basically focused on carrying out what is necessary for the
normal operation of the building, such as:
- Payment of taxes and fees that correspond to your unit.
- Pay the fees assigned to cover the expenses incurred in the administration,
use, conservation and maintenance of common property, which has been
called common charges or expenses.

 As for the common elements. They have a right of co-ownership over them that
implies shared use and enjoyment completed with respect to specific obligations.

Characteristics of the horizontal property regime

In the same way that in its general meaning, characteristics are understood as those
circumstances that differentiate something from the common, in the horizontal property
regime, they are all those circumstances or situations that belong to the institution or
legal figure and that make it individualize or differentiate itself. From the others, two
important ones can be distinguished:

- Coexistence of two legal figures:

 The horizontal property regime is characterized, as mentioned above, by the
existence of a special property right, in which an exclusive right over the
independent units of the building and a common property right of all those
elements, areas or services coexist. that serve for the operation of the building.

- Meeting of soil and construction:

The object of horizontal property is a singular asset constituted by a complex
artificial unit, with real existence represented in the figure of the building. The
building must be conceived as a construction or work of art raised by the meeting
of materials on a piece of land, that is, the meeting of two elements: the
construction and the soil or subsoil that supports it.

Extinction
In Article 555 of the Guatemalan Civil Code, the horizontal property regime can be
extinguished by express resolution of the owners of individual units of the building,
taken with the vote of two thirds of the total owners.

 Among the main causes are:

- By declaration of the owners; constitutes the first cause that causes the
extinction of this regime, it is due to the resolution of the owners of individual
units of the building, taken with the vote of two thirds of the total owners.
There is also the possibility that if there is a minority that is dissatisfied with
this determination, it can acquire the individual units of those who have voted
for the extinction of the regime, in order to maintain it.

- For destruction of the building; This cause is logical and very acceptable and
does not offer further discussion; therefore, it is considered a total destruction,
when it is not expressly determined in the law and is one that does not in any
way allow the reconstruction of the building, or even if it is feasible, whether
its cost is so high that it is better for the different owners to build a new
 building, and in any case, two-thirds of the total owners of independent units
of the building must make said determination.

- In the case of partial destruction, it does not imply a termination of the legal
situation, because there is the possibility of repair as a conservative measure,
but the problem arises when the owner or owners of the destroyed part do not
want or cannot rebuild their property. attitude is decisive for the existence of
the regime and attempts have been made to find the best solutions in
doctrine, without achieving a uniform criterion. ( Batle Vasquez. Ob. Cit. P.
9.)

- By Concentration; It is also extinguished for this reason, when the different

units become the property of a single person, regardless of their acquisition
title. However, this extinction does not occur automatically until it is registered
in the registry, canceling the registrations of the parent farm and the
subsidiary farms, opening a new common and current registration.