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Requirements to be able to close a private terrace subjected to horizontal property regime

Up until the approved reform of the Horizontal Property Law (LPH) carried out by  the  8/2013 Law that entered into force on June 27, 2013, in order to be able to  close a private terrace  in a building under the horizontal property regime,   the unanimously vote of  all residents of the owners’ community was required.  It was considered that this was an amendment to the foundational title of the community itself and that any change of that title required unanimity.

Following the aforementioned reform of the Horizontal Property Law(LPH) carried out by the 8/2013 Law, the regime of majorities becomes more flexible, demanding the vote in favor of the 3/5 of the owners which, in turn, represent the 3/5 parts of the participation quotas.

However, this qualified majority voting of the Board of Owners is not the only requirement needed to be able to close a private terrace.  The article 10.3. b)  of the Horizontal Property Law expressly states that a prior administrative authorization is required, meaning that, before submitting this request to the Board of Owners’ vote, it will be necessary that the Town Hall (or the competent authority) where the property is located, grants the license or authorization for such purpose.

In addition, this article requires, when necessary, the consent of the owners affected by such works. These owners, in case that they concur, will have to prove and justify the damages suffered by the closure of the terrace.

The fact that the Board of Owners has the authority and power to decide on the nature of the works related to the closure of the terrace should be stressed, and that in case of conflict with the applicant owner, they may ask for an opinion of a qualified technician, that the owner will be subjected  to.

The owner who wants to close his terrace, and has a prior administrative authorization and the qualified majority of 3/5 of the Board of Owners, must pay  the cost  of this closure as well as, where appropriate, a compensation for the damages (that can be  demonstrated)  caused   to any affected party; this compensation shall be established by the Board of Owners who may request a technical report for its determination in case of discrepancy between the beneficiary and the affected/damaged party.

 

Should the owner close his terrace without these requirements, namely the prior administrative authorization and the Board’s support in a majority of 3/5, which, in turn, represent the 3/5 parts of participation quotas, will face these double risks:

 

  1. A disciplinary record may be opened against the owner and/or a demolition order by the City Council or administrative authority may be issued for completing the closure without the needed authorization or license.
  2. That the Owner’s Community may  legally sue the owner in order to demolish the closure of the terrace and bring it back to its original condition, at his own expense, plus claiming a compensation for any damages caused to the community or any of its neighbors.

Feliu Martorell
Illeslex

 

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