The controversial comunitarian terraces regime

The March confinement highlighted the need for ventilation and the increase of life quality that the fact of having a terrace implies. Figures never lie: the demand for housing with it or with a garden has increased a lot. By the way, in Feliu we offer this apartment, moreover, you can find here all our real estate products.

Few issues have risen as much litigation in the owners' communities as that of the existing terraces in the building. Horizontal property in Catalonia is mentioned in article 553-43 'Codi Civil de Catalunya' to refer to the possibility of linking the exclusive use of these or other common elements to one or several private departments of the property, remembering that this does not mean that they lose their common element nature.  There is a consensus in the doctrine and jurisprudence in assigning to the terraces the same treatment that is given to the roofs of the building. This is coming to consider those the exterior integral part of them.

Indeed, an architectural perspective of terraces put them near to the concept of roofs. A distinction is made between those roofs in which you can walk on it and those you can't.The functional connection between roof and terrace would be found in that both elements are designed to protect the building interior from heavy rains , however terrace usually forms part of the roof.

Having said this, it is possible to maintain, from a legal perspective, that the terraces are in the same or similar legal nature that roofs are (art. 553-41 CCCat and art. 396 Spanish Civil Code), which conceptualizes them as common elements, as they are necessary to a greater or lesser degree for the adequate use and enjoyment of the building by covering all or part of it, being then of extraordinary importance for the owners' community  to maintain them in good condition in their structural dimension (...).

Notwithstanding the above, this assimilation between roofs and terraces is not exact in practice. Above all when we speak of responsibilities (of the community or of the owner who uses it and enjoys it exclusively) for the water filtrations and humidity in the community or private elements located on the lower floors. 

Due to the fact that problems of interpretation may arise in reference to the private or the terraces community character that are used exclusively by an owner and to the responsibility for a lack of conservation, maintenance or repair of his/her terraces.

In short, we will have to follow the criterion pointed out by section 3 of art. 553-43 of the CCCat, which clearly points that 'repairs that are caused for construction or structural defects, originate or survive, or repairs that affect and benefit the entire property, are on the  community interior, leading to consequent misuse or poor conservation.While paragraph 2 of this article states that 'the owners of the privatized elements that have the exclusive use and enjoyment of the common elements will assume  the conservation and maintenance costs and have the obligation to maintain them properly (...)'. Finally, taking into account the statutes of the Community (if there exist) or those agreements reached in a meeting.
 
Consequently, the responsibility for any repairs -that may be a result of a bad use of the terraces in their roof construction dimension must be linked to the owner or owners of the private element that has its exclusive use and enjoyment- provided that misuse and/or a lack of adequate conservation and maintenance was the unique cause which generates the dampness and filtration.

The bad use or conservation and its direct relation with the damages and the possible incidence of construction or structural defects, must be the object of a detailed analysis in each specific case, being advisable in this respect the intervention and technician opinion  about the cause, the leaks and humidities nature, as well as the way to correct them.

On the other hand, if the damage comes from the terrace the owner who serves and enjoys it exclusively cannot be accused, but is caused by several pathologies, of an architectural or constructive nature, with the result of  the terrace bad use in its function as the roof of the building, then the responsibility must necessarily be oriented to the owners' community, since it is the latter who is responsible for the conservation and maintenance of this element.

At Feliu we have reliable architects and suppliers ready to solve any problem that may arise.

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