The Provincial Court of Las Palmas has ruled in favor of an owner who was required by the community of neighbors to remove a fence that he had installed in the wall separating his house from that of his neighbor. Justice considers that the agreement of the owners meeting in which the decision was made that it had to be removed is void because the work does not violate the configuration of the property nor does it affect common elements. As it is an interior adjoining wall and not the façade of the building, it does not affect its aesthetics.
According to the ruling of January 29, 2025, the Board of Owners approved an agreement in which the neighbor was formally required to remove the fence within a period of two months. The community maintained that said installation affected the general aesthetics and altered the configuration of the building. Faced with the threat that legal action would be taken if he did not remove it, the owner challenged the agreement alleging that unjustified harm was being caused to him.
The Court of First Instance number 16 of Las Palmas de Gran Canaria declared the nullity of the board’s agreement considering that the community had exceeded its functions and that, due to the location of the hurdleit was not affecting the façade or the aesthetics of the building.
If the common elements are not affected, the aesthetic reason is not enough
The Las Palmas Court agreed with this decision, emphasizing that communities of owners cannot prohibit works in private areas if they do not alter the security, structure or external state of the building.
It clarifies that, although the community insisted that the fence affected the aesthetics, this argument alone is not enough to limit the property right if there is no real impact on the common elements or the essential configuration of the property. In accordance with article 7 of the Horizontal Property Law, if the work is carried out within the scope of private property and does not violate the structure or the external state of the building, the owner maintains his power of use.
One of the technical points that was decisive in this case was the exact location of the installation, since the fence was not on the main façade, but on an interior wall that borders neighbors. As it was not part of the exterior enclosure of the building, the Court confirmed that the work did not violate the configuration of the property and remained within the powers of the owner over his private property, without violating the limitations established by the Horizontal Property Law.
Based on article 18 of the LPH, relating to the challenge and enforceability of community agreements, the ruling dismissed the community’s appeal and confirmed that the withdrawal requirement constituted a community mandate lacking legal coverage.
For all these reasons, the neighbor was allowed to continue with his hurdle on the separation wall. However, the sentence was not final, and an appeal could be filed against it before the Supreme Court, provided that the requirements of article 477 of the Civil Procedure Law were met.