Judgment 909/2021 of the Supreme Court, Civil Chamber, Section One, dated 22 December 2021, orders a property owner to reinstate the partition walls of the terrace with the dwelling, which had been demolished after incorporating the terrace into her property, due to the absence of an express agreement by the Owners’ General Meeting authorizing the demolition.
At first instance, the claim brought by a member of the community was partially upheld, considering that the terrace enclosure was similar to those made by other co-owners, and therefore tolerated by the Owners’ Association. However, this was not the case with respect to the removal of the partition wall between the terrace and the adjoining room, as no express authorization had been granted by the Owners’ Meeting, not even implicitly, since such authorization had not been approved in similar cases. Consequently, the defendant was ordered to restore the said wall to its original state, without complying with the plaintiff’s request for the demolition of the PVC framework and glasswork that served as the terrace enclosure of the defendant’s apartment.
In July 2018, the Provincial Court of Granada upheld the appeal filed by the defendant, thereby dismissing the claim.
By its judgment of 22 December 2021, the Civil Chamber of the Supreme Court upheld the appeal in cassation brought by the claimant, fully confirming the ruling issued at first instance by Court No. 17 of Granada.
The Supreme Court stressed that the claimant had attempted twice to include the issue of the demolition of enclosure walls on the agenda, but was not allowed to do so; therefore, as the matter was not discussed, implied consent could not be presumed.
The High Court emphasized the need for unanimous consent of all co-owners for the modification of common elements and the constitutive title, in accordance with Article 7 of Law 49/1960, of 21 July, on Horizontal Property, which prohibits changes to the external configuration of the building without the required authorization of the community, and such authorization had not been granted in respect of the enclosure walls, although implied authorization did exist for enclosing the terrace with aluminium joinery.