Horizontal property

The Supreme Court (SC) has ruled on an increasingly common issue in property communities, that a neighbor becomes the owner of a common terrace if they have used it exclusively for many years, even without a formal agreement from the community. In this case, a neighbor had been using since 1974, continuously

and openly, a specific part of the building's terrace that had direct access from her home. The entire community was aware of this and reflected it in minutes and communications, although the transfer of that space to private ownership was never formalized. The owner wanted to have full ownership

of that terrace recognized, arguing that she had been using it as her own for many years and that, with the legal requirements met, she had the right to be recognized as the owner , thanks to what is legally known as " adverse possession ", that is, the acquisition of property over time by maintaining public, peaceful, and owner-like possession. The court of first instance did not rule in her favor, as it considered that since it was a common element (a terrace), ", that is, the acquisition of property over time while maintaining public, peaceful possession as an owner.

The court of first instance did not rule in their favor, as it was considered a common element (a terrace), could not be appropriate just like that. However, the Provincial Court did recognize that, in this specific case, the terrace was a common element by destination (not essential for the community), capable of becoming private if there is a just title and continuous possession. It emphasized that the neighbor and her predecessors had acted as owners for more than 30 years , openly, exclusively, and known by all.

The case reached the Supreme Court, which upheld the criteria of the Provincial Court. The Supreme Court recalls that only common elements "by nature" cannot be appropriated, but common elements by destination (such as an external terrace that only serves one dwelling) can cease to be common and become private property if the legal requirements are met, such as the just title, continuous possession as an owner, and public knowledge of the situation without mere passive tolerance from the community.

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