Horizontal Property

A community of property owners decided to carry out accessibility works by installing an elevator, because the buildings were old and, due to their configuration, the solution was practically necessary. The problem was that, in order to install the elevator , it was not enough to touch common areas, it was also essential to occupy some storage rooms that were privately owned by several neighbors. In that context, several agreements were approved at an Extraordinary General Meeting several agreements exempt exonerate The plaintiff owners

challenged those agreements , requesting that they be declared null . Both the first instance court and the Provincial Court on appeal dismissed the lawsuit and appeal. For the Provincial Court, it was crucial that . Both the first court and the Provincial Court on appeal dismissed the claim and appeal. For the Court, it was key that there was no viable technical alternative and that the occupation of those private storage rooms was essential to carry out the work. Additionally, it pointed out that the complaint was mainly against the "exemption" from payment granted to some, and only secondarily against the cost sharing that the rest (including commercial premises) would assume according to their share.

The matter reached the Supreme Court (TS), where the appellants insisted on two ideas, that everyone must contribute to common expenses and that exempting some would require unanimity ; and that the elevator did not benefit them (being premises), but it did harm them to "pay what others did not pay". The TS dismisses both reasons. It explains that the real discussion was about what majority was needed to approve that exemption, and that this falls within art. 17 LPH; in addition, the confirmed sentence followed the doctrine that agreements directly linked to installing the elevator (including the cost sharing and exemption of some) can be approved with the same majority as the main agreement , even if they affect the title or bylaws, as long as they do not cause serious harm.

And here, says the Supreme Court, there is no "serious harm", the elevator responds to an objective need , improves the value of the building as a whole and this also has an impact on the premises, even if they use it less. The exemption in favor of those who lose their storage room is reasonable and objective , because they were bearing an essential sacrifice to carry out the work. The cost is assumed by the rest of the obligated owners, including the appellants, and not using a common service does not exempt you from contributing to their expenses.