In many communities of property owners, we find that certain owners make use of common elements in a private manner.
In the case of terraces and courtyards that are common elements for private use, doubts arise as to who must carry out the repairs that occur in such common elements.
According to Spanish Supreme Court precedent (Judgment no. 80/2024 of 23 January 2024), in order to determine whether the repair of the terrace of the building for private use corresponds to the community of property owners or to the owner making use of such element, one must look to the origin of the damage, without (i) the fact that the common element in question has been disaffected and is considered as an element for private use, or (ii) the fact that the bylaws establish the obligation of repair by the owner making use of such element, being able to automatically generate liability for the owner making use of such element.
In this regard, the Supreme Court has ruled, in the case of terraces – a common element for private use – that, if we are dealing with structural damage to the building, the community of property owners must bear responsibility, and if we are dealing with damage caused by a lack of maintenance of the terrace, it is the owner making use of the terrace who must assume responsibility for its repair and for the damage thereby caused, since it is the owner of the dwelling in question who has the duty of care and maintenance of the common element over which he or she has been granted use and enjoyment in a private manner, as provided in Article 9.1(b) of Spanish Act 49/1960, of 21 July, on Horizontal Property (“LPH”). Although the aforementioned case law does not refer to courtyards, we understand that the same criterion would apply to them, as they constitute a case similar to that debated by said case law.
According to Supreme Court precedent, in the case of terraces over roofs, although the roof is by its nature a common element of the building and cannot be privatized (SCJ 08/04/2011), the terraces that are built upon such roof cause the latter to have a dual characterization, since, on the one hand, the roof is a common element that cannot be privatized, but on the other hand the terrace located on top of the roof may be privatized, thus constituting (i) either a private element, or (ii) a common element for private use, as the case may be. That is to say, one must differentiate between the roof and the “terrace over the roof.” That being the case, and without prejudice to what has been stated above regarding the need to look to the origin of the damage in order to determine the liability of the community or of the owner, the roof beneath the “terraces over the roof” is a common element and it is the community of property owners itself that is responsible for its repair pursuant to Article 10.1 LPH (SCJ 16/10/1989 and 03/01/2007), whereas the repairs of the “terraces over the roof” themselves correspond to the owners who make use of them, pursuant to Article 9.1(b) LPH.
In conclusion, depending on the place where the damage and/or defect occurs, liability will arise either for the community of property owners or for the owner of the dwelling making use of the common element, all of this without prejudice to the damage being caused by the action of a third party, in which case the causal relationship must be examined in order to establish the liability of the party who caused such damage.