Horizontal Property

Some neighbors, owners of a semi-detached house within a group of ten, sued the owners of the adjacent house because they had made an extension and wanted to be forced to demolish it and leave the house as it was. The work consisted , basically, in extending the ground floor towards the garden/patio, creating a new volume built (up to the limit allowed by the municipal urban plan), reorganizing rooms and adding a bedroom and a toilet .

In the first instance, the court dismissed the lawsuit. Why? Because it understood that, according to the new construction writing and horizontal property, in that so-called "lying horizontal property" neither the facades, nor the enclosures, nor the roofs were considered as common elements . With that idea, the court concluded that no authorization was needed from the owners' meeting to carry out those works.

The plaintiffs appealed and the Provincial Court ruled in their favor and condemned the defendants to demolish what was built in the patio/garden and to restore it to its previous state . For the Court, roof, facade, and foundation were common elements "by nature" , because they could not be considered private physically. In addition, it stated that the ground and airspace were common, so the extension affected common elements and, in the absence of community consent , demolition was necessary.

The defendants appealed to the Supreme Court (TS), arguing that the agreed terms should be respected in the deed. However, the TS dismissed the appeal. The bylaws distinguished between interior works (free) and works on the facade, limited to those of simple "ornamentation" and always without compromising safety or affecting common elements. And concludes that what was done was not a minor or decorative work, but a significant alteration (opening of a hole and new construction to expand the housing). In addition, it emphasizes that it harmed the interests of other owners , affecting views and light and the aesthetic uniformity of the whole.