The Judgment of the Provincial Court of Barcelona of 3rd June 2022 (ECLI: ES: APB: 2022: 5915) analysed a case in which the owner of the penthouse of a building with a horizontal property system used a space between the roof of the building and the concrete slab that served as roof to said penthouse as an attic or storage room exclusively for their own use.
The judgment passed in first instance, upheld in part, the claim filed by the Owner’s Association and sentenced the defendant owners to abide by the agreements adopted and to facilitate the entry of hired industrial operatives to carry out rehabilitation works on the roof.
In the Legal Grounds of the case the Provincial Court analysed the following issues:
A. Legal qualification of such space.
B. Attribution of the exclusive use of a community element to a co-owner given the passivity of the Owner’s Association (Tacit consent).
C. Majority required to adopt resolutions.
D. Abuse of the right.
A. With regard to the first issue, first of all the regulation established in article 553.41 of the Catalan Civil Code was analysed which determined that roofs constitute a common element, followed by case law, which distinguishes between common elements by definition (which are essential to ensure the use and enjoyment of the proprietary elements and their nature cannot be changed) from the common elements by use (the nature of which can be changed through the deed of incorporation or by the unanimous agreement of the Owner’s Association).
Given that the roof of any building with a horizontal property system is a common element by definition, the court deemed that the space object of the study to also be a common element, since it originally constituted a building element which was not intended for use by the owners.
B. With regard to the second issue, the court established that article 553-43.1 of the Catalan Civil Code does not allow the exclusive use of a common element to be linked to one or several proprietary elements, based upon the tacit consent of the Owner’s Association, as deduced from a prolonged passiveness regarding the use of said element. Reference was made to the Judgments of the High Court of Catalonia of 11th July 2019 and 24th March 2021. Said Court explained that although it allows tacit consent to operate when the claim is to restore the common element to its original state, this is not allowed when the occupation of a common element entails undue privation of the right of use for the rest of the owners.
C. With regard to the third issue, the court understood that for the adoption of decisions to take place neither unanimity nor a qualified majority of four fifths is required, but a simple majority, under that provided for in article 553-25.2 letter b, applicable to “the innovations required for habitability, accessibility, safety, energy or water efficiency, even if the agreement entails the modification of the deed of incorporation or bylaws or affects the structure or external configuration“.
D. With regard to the fourth issue, the Court explained that the doctrine of abuse of rights is based on article 7. 2 of the Civil Code and also on articles 111.7 and 111.8 of the Catalan Civil Code. It referred to the doctrine of the Supreme Court which establishes that “liability is incurred by those who, acting under the protection of external legality and an apparent exercise of their right, go beyond the limits imposed by equity and good faith, with damage to third parties or to society“. It emphasised that the essential elements listed by the scientific doctrine are:
1) the use of an objective or externally legal right;
2) damage;
3) immorality of such damage, manifested subjectively (intent to harm) or objectively (damage resulting from an excess or abnormality in the exercise of the right).
Likewise, the following points were emphasised: (i) that the case law has focused upon the subjective aspect, it being necessary to be concerned with the conduct of the agent, with their mentality, and knowing if a legitimate motive has been followed, (ii) that it cannot be invoked when the sanction is imposed by a legal precept and (iii) finally, that in any case, it must be of restrictive application.
On the basis of the above, the court, contrasted the interests of the Owner’s Association with those of the individual owner, and understood that those of the former were legitimate and offered common advantages (improvement of the salubrity, habitability and functionality of the building and its apartments, especially the penthouses) while those of the latter were based on an undue occupation of a community element by definition, therefore the interests of the owner of the penthouse in question could not be the object of protection.
Mireia Bosch
Vilá Abogados
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5th August 2022
