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Anyone who has lived as part of a Community will know that this is not always easy. So we understand what we are talking about in this case, I’ll give you an example:


Let’s take a look at a block of apartments with large terraces that are common community property but are for individual private use. In this case, the terraces on the top floors generate a lot of problems as they constantly have damp problems which filter to the apartments on the floors below. The question being that when you have a problem with damp or leaks who should pay these repairs on the terraces of the top floor? What happens when the owner of the top floor duplex has made changes to his terrace?


The answer is as follows: These terraces are community elements but used privately, and hold the condition of “double community property”, as it is the roof of the apartment below; and private as the use of the same can only be attributed to the owner of that apartment. When there is a leak in the terrace and this filters to the floor below, the responsibility of repairing and paying for this common property of private use is either that of the owners or the community, depending on where the leak is located. If the leak is caused by defects in the maintenance of the terrace, the bill for repairs should be footed by the owner of the property, as they are in breach of article 9.1 of the Horizontal Property Law, which regulates such matters. When the leak is caused by a deficiency in the damp proofing of the terrace or the deterioration of the same the repair should be paid for by the Owner’s Association for the building, as stated under article 10.1 of the Horizontal Property Law. An easy rule to remember when ascertaining where the responsibility lies is if the deterioration is in a place that the owner uses (the floor tiles for example) the owner pays. If you cannot see the damage (structural defects, or defects of damp proofing etc.) then it should be the community that pays for the repairs.


Where the owners have repaired the terraces themselves we can come across problems also: If the cause of the leak or damp is due to works carried out by the owner himself, it is he who should pay for the repairs. If the leak is due to a community problem but the owner has retiled the original surface the community cannot assume the extra costs of these alterations and will only have to pay the costs of repairing the damp proofing and the original tiling. However, there are judgements that sentence the community to pay for the repairs because they have allowed the common property to be altered by the owners. Logically the origin of these leaks cannot be determined by the Community, so an independent technical report is fundamental to establish the cause of the leaks.


Please contact Ana Gay at Link Point Legal on 96 626 0500 or email anagay@linkpointlegal.com for any further information.


Page 8 Repairs on community elements of private use


Female Focus by Ana Gay


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