Horizontal property
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Works to join two units affecting common elements without authorization
Opening two doors in a wall to internally connect two units (a dwelling and an office) may seem like a "simple" work, but the Supreme Court (TS) has stated that, in such a case, it cannot be done without the community's agreement when it affects the planned configuration and common elements.
In this case, the owners of two adjoining units carried out works to connect them, opening two openings or doors in the dividing wall. The building was part of a community, which argued that the union had been done without authorization and requested that the works be declared illegal and that the wall and altered common elements be restored, leaving the enclosure as it was originally and carrying out the necessary technical actions , all at the expense of the defendants.
Before the lawsuit, the City Council had suspended the works due to lack of license and this suspension was not appealed. Later on, responsible statements were submitted describing the actions as " conditionings " and then a license was obtained for change of use from commercial to residential. During the meeting, the community of owners reflected majority opposition and agreed to file a lawsuit.
The court ruled in favor of the community of owners, considering it as a "joining" without agreement and ordered to restore the wall, also understanding that the wall had a common nature according to the bylaws (which included "party walls"). However, the Provincial Court overturned this ruling and stated that it was a physical union , without a "legal" joining, and that there was no impact on common elements or on the safety or configuration of the building.
The Supreme Court corrects the Provincial Court. According to the Supreme Court, joining a residence and an office from "different properties", with their own common elements and restricted expenses, amounts to a grouping that requires prior agreement according to the Horizontal Property Act art. 10. 3. b, without being able to distinguish between a "physical" and "legal" union to avoid that permission. Therefore, it accepts the appeal, annuls the Provincial Court's ruling, and confirms the one from the court, ordering to rebuild the wall and restore what was altered.
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Elevator maintenance
Nullity of duration clauses and excessive notice in successive contracts This case deals with a typical contract for “preventive maintenance” of elevators, which are not fulfilled in a single day, but are provided month by month (what is called in law a successive contract). A maintenance company sued a community of owners because it decided to terminate the contract before the agreed term expired. The company claimed two things, on one hand, that unpaid invoices were paid; and, on the other, compensation for “breaking” the contract early. The conflict revolved around two clauses of the contract where one set a duration of 3 years and the other required a notice of 180 days (six months) in advance if one wanted to terminate the contract. The community argued that these conditions were abusive in the case of a consumer (in this case, the community itself). In the first instance, the court ruled in favor of the company, ordering the community to pay both the compensation for early termination and the outstanding invoices (in addition to interest and costs). However, on appeal, the Provincial Court of Málaga changed the criterion, declaring the 3-year duration clause and the 180-day notice clause null and abusive. What is the practical consequence? If those clauses are invalid, the company cannot rely on them to demand a penalty or compensation for having terminated the contract early. Nevertheless, the community must pay what it actually owed, the outstanding invoices for services already rendered. The Supreme Court confirmed this outcome, the duration and notice clauses are considered null, no compensation is due for ending the contract early, and only unpaid invoices are owed.
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Urban leases
Does a reversible work by the tenant give the owner the right to terminate the contract?
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Urban Leases
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