The Supreme Court has clarified that the claim to restore an altered common element in a community of owners can be exercised for a period of 30 years when what is defended is the property right of all community members over the common element. The Civil Chamber thus corrects the Provincial Court of Alicante, which had considered the claim of some owners time-barred when it understood that it was a personal action subject to a period of 15 years.
The ruling of the Supreme Court (available at this link) of this April 9, resolves the case of a building in Jávea made up of only two homes, one on the ground floor and another on the upper floor. The owners of the ground floor sued those above, claiming that they had built a shed or storage room of about 15 square meters on a common terrace of the property. In the lawsuit they asked that the illegality of the work be declared, that the construction be removed, that the terrace be returned to its original state and that their property rights be restored to them.
The Court of First Instance and the Provincial Court did not agree with him. Both confirmed that the shed had been built for about 27 years and concluded that the action was prescribed, describing it as personal. Now, the Supreme Court rejects this interpretation and points out that the lawsuit was not limited to requesting the removal of a work, but also sought to recover the right of common property over the terrace.
The High Court explains that the action brought “intends not only to declare the illegality of the construction carried out by the defendant on the common terrace of the building and to restore it to its original state, but also to restore the property right that would correspond to all community members.” Therefore, it concludes that the claim “exceeds the content of the personal actions.”
The term is 30 years
The difference is that, if the action is considered personal, the applicable limitation period would be 15 years, in accordance with the previous wording of article 1964 of the Civil Code, which was applicable to the case. But if it is considered real, the term amounts to 30 years, according to article 1963 of the Civil Code.
The Supreme Court explains that in its doctrine (Plenary 540/2016) it was established that “the actions by which the community demands the restitution of any common element to its previous state against the owner of the private element who could benefit from said alteration, are of a real nature and therefore, the limitation period applicable to them is the thirty years established in article 1963 CC.”
For this reason, the Court determined that the action could not be declared time-barred, since only a period of 27 years from the construction of the shed had been considered proven. That is to say, the 30-year period provided for this type of real actions had not elapsed.
The Horizontal Property Law is key, since it distinguishes between the exclusive right of each owner over their apartment or premises and co-ownership, together with the other owners, over the remaining elements, belongings and common services of the building. In addition, it limits the works that each owner can carry out when they affect common elements, the exterior configuration of the property or the rights of other neighbors.