Horizontal Property

In a community of property owners a common area of the building was being used as if it were an extension of a bar located in a premises. The tenant of the premises, with the involvement of the landlord (the owner of the premises), placed there furniture and terrace elements , occupying an area that belongs to all the neighbors.

The community, in a meeting , agreed to withdraw the authorization to continue placing those elements and communicated it by burofax with acknowledgment of receipt to both the premises owner and the tenant. In addition, the community sued the tenant to remove the furniture and leave the space as it was before, even requesting that, if she did not do it, the community could remove it themselves and pass on the cost.

In the first instance, the court dismissed the demand because it understood that had not been proven the action properly and that there had been prior authorization for years to place movable elements as a complement to the business. It also pointed out that complaints were not proven by neighbors, damages or municipal breaches, and that the notification of the minutes of the meeting to the owner so she could challenge the agreement was not on record. The Provincial Court overturned that decision and

ruled in favor of the community considering the minutes sufficient and assuming that the tenant knew about the agreement through the burofaxes, so the validity of the agreement cannot be disputed "in passing" or as mere opposition, but by challenging it.

The tenant appealed to the Supreme Court (TS). The TS noted that the Court of Appeals had not addressed her argument of lack of standing (whether she could be sued) which was relevant. Nevertheless, delving into the substance, the TS concludes that the community was exercising a action to defend a common element occupied without authorization, and that the tenant could indeed be sued because she was the one who owned and used that space with her furniture. Also, remember that the challenge of community agreements belongs to the owners, not to the tenants , and that the agreement was final because the owner did not challenge it, something that the tenant knew because she was notified.

In short, if the owner-landlord does not have the right to occupy that common element for the bar, the tenant neither can do it. The Supreme Court dismisses the appeal and upholds the sentence to remove the terrace elements.

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