Horizontal Property

In a very small community of property owners, with only two dwellings (ground floor and top floor) and with 50% of shares each, a conflict arose over the building's roof . Although the deeds did not detail the common elements, the owners of the ground floor (plaintiffs) argued that this roof was a "mixed" common element, with a part that is not walkable and another part walkable intended for common facilities (e. g. antennas). According to them, the owners of the top floor (defendants) had built a shed or storage room shed or storage room construction be declared the work was illegal The defendants argued that the shed had been built by their parents

over 30 years ago for over 30 years (and, at least, its existence was known since 1992). They also said that that terrace had always been used that terrace because it could only be accessed from there, and that the plaintiffs had never gone up or taken care of its maintenance. With that argument, they maintained that the action was prescribed .

The court and the Provincial Court dismissed the lawsuit due to prescription , considering the action "personal" and applying a 15-year deadline. However, the Supreme Court (SC) upholds the appeal understanding that the plaintiffs were not only asking to "remove the work", but also to recover the corresponding property rights of all the co-owners. That's why it classified the action as real in nature and applied a deadline of 30 years , concluding that it had not prescribed (only 27 years had elapsed since the construction). The SC annuls the decision on prescription and orders the Provincial Court to issue a new judgment addressing the other issues.

Our professionals can provide you with proper advice on the operation of your community in accordance with regulatory requirements, as well as take appropriate actions to defend your rights