Convert a window into a door to have private access to the common patio, install the washing machine, place pots and a clothesline. This is how two owners acted of a building in Seville without having the authorization of the community of neighbors. The Provincial Court has confirmed that they must now reverse all the works and remove their belongings from the patio.
Conflict. As you can read in the sentencethe lighthouse was a common space belonging to two buildings. One of them filed a lawsuit against these owners for opening a hole in the wall that faced the patio, allowing them to access directly from their home and use the area as if it were private, just as they explain from NewsWork. All of this without having requested or obtained the approval of the owners’ meeting.
The defense. The reported neighbors alleged that there was discrimination, since another owner had maintained a similar door to the same patio for decades. They also argued that the neighbors at the time expressed indifference and that the lawsuit was motivated by poor personal relationships. However, none of these arguments succeeded.
What the law says. The Provincial Court of Seville rejected the appeal and confirmed the First Instance ruling. Just like express From the middle, according to article 7.1 of the Horizontal Property Law, no owner can make alterations to common elements without express permission from the community. Opening a hole in the façade requires approval by board agreement, something that in this case was never requested.
The problem of exclusive use. The court pointed out that he article 397 of the Civil Code establishes that no community member can use a common space in a way that excludes others or prevents their use. By installing a washing machine, pots, clothesline and other personal items, these owners were depriving the rest of the neighbors of shared use of the patio.
Someone doing it is not enough. The fact that another neighbor has been granted that right does not automatically authorize the rest of the owners to do the same. The sentence discard the “comparative grievance” as a justification for repeating previous violations, especially when there is no community agreement to support it. In this way, the community would have acted within the legal framework.
A recent use. The defendants were also unable to demonstrate that they had acquired rights through the passage of time. The acquisition of easements by prescription requires peaceful, public and continuous use for at least 20 years, according to the article 537 of the Civil Code. In this case, just as share the medium, the intervention was recent and without legitimation.
Conviction. The two neighbors must close the door, replace the original window and remove all elements from the common patio: washing machine, flower pots, clothesline and any other object. In addition, they are obliged to repair the damage caused in the area and assume the full cost of the work to restore the previous state of the façade and the shared patio.
Cover image | Javier Gomez
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