The Provincial Court of Malaga has just confirmed that a neighbor will have to demolish a wall erected without authorization between her garage space and her storage room, considering that the work violates the Horizontal Property Law and alters the configuration of the building.
In the sentence, the court does not find discriminatory treatment, nor abuse of rights by the community, but it does find a work carried out without due authorization, which is enough to order its demolition.
The conflict dates back to the construction of an enclosure that separated (and at the same time functionally joined) a garage space and a storage room. The work was carried out without prior authorisation from the community of owners, an essential requirement if the action alters the configuration of the property, its floor plan or its use, regardless of whether it directly affects a specific common element. Faced with this situation, the community convened an extraordinary meeting to address the problem and decide how to act in the face of works that were already underway.
At the meeting, held in January 2020, the owners agreed to require the neighbor to remove the wall within a week. They also made it clear that if he did not, the community would take legal action. The owner chose to challenge the agreement, alleging unequal treatment and an alleged abuse of rights.
The Court of First Instance No. 4 of Torremolinos rejected these arguments: the work had been done without permission, and that was enough to declare it illegal. In addition, he took into account that the lack of authorization was recognized at the meeting itself.
The Court of Malaga, in resolving the appeal, was even more explicit in pointing out that it was not a minor work, but an intervention that involved the perimeter closure of an originally open space, the functional union of garage and storage room, an increase in surface area by aggregation and an alteration of the floor plan and the original configuration of the building. As it had been carried out without authorization, the action could not be maintained and the community was entitled to demand its demolition.
One of the axes of the defense was to allege that other neighbors had done similar works without consequences. The Court easily dismantles this argument, recalling that the existence of works of the same entity carried out without authorization was not proven and that the actions cited as an example had been previously submitted and approved by the board, with the owner having the burden of proving the alleged discrimination.
The judgment also analyzes whether the community committed an abuse of rights, in accordance with article 7 of the Civil Code and the doctrine of the Supreme Court. For there to be abuse, the Chamber recalls, elements such as unjustified damage, intent to harm and an abnormal or disproportionate exercise of the right must be present.
None of this is appreciated when a community acts to preserve legality and avoid unauthorized alterations to the building, the Court highlighting that this action is legitimate, proportionate and in accordance with the planned channels.
On the other hand, the provincial court considers the agreement valid for the exercise of legal actions as it was adopted according to the majorities required in < a cmp-ltrk="[Article] Inline paragraph" cmp-ltrk-idx="2" data-mrf-link="https://www.boe.es/buscar/act.php?id=BOE-A-1960-10906&p=20250724&tn=1#adiecisiete" href="https://www.boe.es/buscar/act.php?id=BOE-A-1960-10906&p=20250724&tn=1#adiecisiete" mrfobservableid="98f0946f-6b2f-47c7-ac4a-10abc3e478d7">article 17 of the Horizontal Property Law, recalling that preventing access to the courts would violate the right to effective judicial protection, recognized in < a cmp-ltrk="[Article] Inline paragraph" cmp-ltrk-idx="3" data-mrf-link="https://www.boe.es/buscar/act.php?id=BOE-A-1978-31229&p=20240217&tn=1#a24" href="https://www.boe.es/buscar/act.php?id=BOE-A-1978-31229&p=20240217&tn=1#a24" mrfobservableid="6772c8cb-275a-48f6-b38e-13b0c95e1b1d">article 24.1 of the Spanish Constitution.
The resolution sends a clear message to owners and communities: works that alter common elements or the configuration of the building need prior authorisation, and if this is not obtained, the consequence can be demolition and legal litigation. One more reminder that, in the horizontal property regime, acting without prior authorization entails significant legal and economic risks.
As we have seen, even if the garage is a private element, the community can demand demolition if the work alters the configuration of the building, its floor plan, its use or the common elements, and especially when it has been carried out without prior authorisation. The courts understand that the right to property under the horizontal property regime is not absolute and finds its limits in the general interest of the community.
The owner may be obliged to assume the full cost of the demolition, the costs of replacing it to its original state and, in the event of an order for costs, the fees of the lawyer and community attorney , as well as any technical or expert reports. so the economic impact can be very high.
To avoid problems, request prior authorization from your community, present a clear and detailed project, wait for the agreement of the board before starting the work and make sure that there is a written record of the approval. Acting this way will avoid unpleasant legal proceedings, unnecessary costs and long-term problems.
Experience shows that many conflicts in communities of owners are born from misinterpretations of property law. The current regulations and jurisprudence are clear: in the horizontal property regime, works without prior authorization present a high legal risk, and the community has effective legal tools to demand the restoration to the original state. Knowing these limits before acting is the best way to avoid lengthy, costly, and in many cases, lost litigation in advance.
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