Are you or your company part of a condominium regime?
Liability rules are changing. Administrators, members of the surveillance committee (board of directors), and condominium owners are now exposed to a broader liability standard for damages to third parties. This is what the Supreme Court of Justice decided in a new Jurisprudence.
On Friday, March 8, 2024, the following case law were published: 1a. 40/2024 (11th) with digital Record 2028382, the thesis: 1a./J. 44/2024 (11th) with digital Record 2028384, the thesis 1a./J. 43/2024 (11th), with digital record 2028381 approved by the First Chamber of the Supreme Court of Justice of the Nation ("SCJN"). In this regard, the new criteria resolve various assumptions regarding tort, negligence, and strict liability.
These new case law interprets the legislation of the State of Guerrero, which is similar to many states in the country, including Baja California, Baja California Sur, Chihuahua, Mexico City, Quintana Roo and Nuevo León.
What do the new jurisprudence theses indicate?
In matters of tort liability, the surveillance committee of a condominium may be liable for the acts or omissions of the administration that result in civil liability. Jurisprudence thesis 1ª./J. 40/2024 (11a.).
In a tort liability suit, the administration of a condominium may be liable for his negligence and damages that occurred in the condominium's common property, Tesis 1ª./J. 44/2024 (11ª).
In the case of strict civil liability, the condominium owners are liable for the damages that occurred in the common property of the condominium, in proportion to their aliquot part. Thesis 1ª./J.43/2024(11th).
What were the facts that motivated the theses?
Among the arguments sustained by the Supreme Court are the following:
The Condominium Property Law for the State of Guerrero, similar to that of other states, states that the general assembly of condominium owners, the surveillance committee and the condominium administration are bodies for making and executing condominium decisions.
Under the Condominium Property Law, the surveillance committee, as a collegiate body made up of condominium owners, is responsible for overseeing that the management complies with its functions and with the resolutions of the general assembly of condominium owners, and liability for acts of third parties means that the obligation to compensate the damage falls on a person other than the one who materially caused it because the first person maintains a bond of power, custody, care, surveillance, control, dependence or subordination with the second person.
In this sense, the Law indicates that the surveillance committee is the one who has control and surveillance, as well as is subject to a supra-subordination relationship with the administration of the condominium. Therefore, the surveillance committee may be civilly liable for the acts or omissions of the administration that result in subjective civil liability, unless it proves that it has fully complied with its surveillance obligations.
The Court pointed out that the Condominium Property Law establishes that the administration is the body in charge of taking care and watching over the condominium property and the common services; taking care of the efficient and adequate operation of the facilities and the general services, and performing the acts of administration and conservation necessary for the common areas, among other of its functions. Therefore, the administration, in its capacity as the body that cares for, watches over, and conserves the common property, the administrator or manager may be subjectively liable for damages occurring in the common property or areas of the condominium when they derive from his or her willful or negligent action or omission.
The Condominium Law provides that the condominium owners have the right of co-ownership of the common property of the condominium, in proportion to their undivided ownership. In this order of ideas, the Court pointed out that the Civil Code of Guerrero, similar to that of most of the States, provides that the owner or original possessor of a property that generates a risk will be objectively liable for the damage caused, even if there is no fault or negligence on his part. Therefore, under applicable law, in cases of strict liability for events occurring as a result of a risk created by the property or common areas of a condominium, the condominium owners are liable under their aliquot share.
Effect of judgments and their implications in civil liability matters.
In residential, commercial, and industrial condominiums, these new case laws will influence the administration bodies. From these legal precedents, being the administrator of a condominium, or a member of the surveillance committee, generates a personal risk for whoever accepts the position. Furthermore, condominiums must take special care with the quality and qualifications of the persons they elect for the Vigilance Committee and for the administration, since their failures or omissions may entail a personal risk to the condominium owners.
Today more than ever, strict compliance policies should be implemented within Condominiums, internal audits should be conducted to ensure maximum compliance with the law, and the extent and validity of all liability insurance should be reviewed. An audit of the terms of liability insurance contracts is highly recommended.
Our team of experts can assist you in clarifying the level of protection of your insurance policies.
Our firm, De Hoyos Aviles, has extensive experience in tort law and real estate law, and specifically in the legal defense of issues associated with residential, commercial and industrial condominium regimes in the cities of Tijuana, Mexicali, Los Cabos, Guadalajara, Puerto Vallarta, Cancun, Chihuahua, Monterrey and Mexico City, to mention a few.
For more information, please contact us at contacto@dha.mx
