It is not uncommon for a property owner to assume at his own expense the repair or replacement of common elements, when carrying out a private rehabilitation or renovation works in his own home.
For example, should a few meters of down pipes which was found to be in a terrible state to be repaired or to carry out the repair of the roof over their dwelling, to reinforce columns or beams, etc., which were found in the mid of a rehabilitation, it is evident that the owner's interest in that the problems discovered during his own rehabilitation works on these common elements are solved while the renovation works within the apartment are being carried out and not wait for the damage to show at a later date and then having to allow the community of owners access through their brand new rehabilitated property to those elements.
On one hand it may seem clear the interest of the community in repairing those elements, which they may not or may not want to carry out at that particular time so the issues that can be raised is whether the private owner can carry out such works there and then and, if it is appropriate, to claim reimbursement from the community of owners for the costs incurred in such works.
A quick review of the horizontal law
In this regard, the Article 7.1 of the Spanish Horizontal Property Law establishes that "The owner of each apartment or premises may modify the architectural elements, facilities or services when it does not impair or alter the security of the building, its general structure, its configuration or damage the rights of another owner, and must account for such works in advance to whoever represents the community", and if the owner belief there is a need for an urgent repairs the owner should communicate it without delay to the administrator of the building or community.
A lot of similar cases to the one described above can be found in the Spanish courts judicial literature usually linked to variation on the same theme and more often than not, produced conflicting rulings, so let’s take a look a few of those rulings:
And some Spanish court sentences
- While the Barcelona tribunal (Section 4) of 28th of October, 1999, stated that "what really matters to ascribe the payment to the community of owners is to identify if the element repaired is part of the structure or whether it is a common element that will benefit the rest of the owners. In this case it was repairing the main building roof waterproofing which acted to the benefit of the community, as the waterproofing acted as a barrier to the rain water to the others lower floors, so all owners must contribute to the cost of the repair and thus the community of owner should pay for the costs of such repair", and concludes that there is a right to reimburse the owner who carried out the work because "as the Supreme Court. already showed in sentences of 17.02.1993, both the repair work of the architectural element, and the asphalt laid, benefited all the owners below and for that reason its cost must be supported by all".
The Navarra (Section 1) of 28 November 2012, past the following sentence, with regards to a rehabilitation case in the context of the reform of a property. It stated that although it is true that the courts have admitted the possibility that a community member may carry out the corresponding reparation of common elements in case of necessary and urgent works and then pass on their cost to the community, also said that "this can only be admissible in exceptional cases, when the community maintained a passive attitude or did not act with the necessary diligence to avoid greater damages, so that the action of the private owner obviates the necessity to avoid that the building suffered further reparations or that would be irreparable if those repairs were not carried out with the necessary urgency so that the carrying out of the works proved to be unavoidable, being able In those cases to dispense with communication to the community of owners and to await their response".
We will continue next week with further cases so as to obtain an overall view of when and how can we as individual owners act on common architectural elements of a block of apartments or within an urbanisation.
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