Property Law: Modifying Common Elements and Legal Challenges

Modifying Common Elements in Residential Buildings

When two properties belonging to different owners are involved, specific legal requirements apply. A resolution from the meeting of owners is mandatory, including a formal agreement with the president's oversight. If a door opens to a common element or the street, it is classified as a common element destination. To disaffect such an area, unanimous agreement from the owners' board is required, as per Article 1.17 of the Horizontal Property (PH) Law.

Joining Homes on Different Levels

Regarding the modification of floors or pavements, these are considered proprietary elements and may be altered. Decorative elements on the roof may also be modified, as they are exclusive. However, main beams are common elements. Similarly, for wall-ceiling modifications, Article 7.1 of the PH Law requires notification to the president.

Extending Adjoining Local Properties

While the PH Law does not explicitly resolve the extension of a local property into an adjoining building, the Supreme Court (TS) has permitted this through the establishment of a reciprocal easement. Forming this easement requires unanimous agreement from both owners' meetings to modify the constituent titles. Under Article 1.17, this agreement allows for the joining of sites.

Subsoil and Common Elements

The subsoil is a common element of the building. Essential elements cannot be altered; however, accidental elements may be modified by a unanimous agreement of the owners' board and the president. Unilateral action is invalid; legal validity is only achieved through a formal board agreement.

Legal Challenges and Representation

Who is entitled to challenge?

• The President: According to Article 3.13 of the PH Law, the president legally represents the community. To claim damages to a common element, a resolution from the meeting of owners is required, typically needing a majority vote. The judge must review the records to confirm the majority consent.
• Individual Owners: Any owner may claim against another owner or a third party for damage to common elements or their own exclusive property.

Key Differences in Legal Liability

The distinction between these two paths is significant:

• If the president initiates the claim with board agreement and the case results in an acquittal, the community covers the costs through its budget.
• If a private owner initiates the claim and is acquitted, that individual is personally responsible for all trial costs.