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Can I build a small home extension within a Community of Owner?

Community of Owners or  "Comunidad de Propietarios"

Perhaps one of the most asked questions by homeowners expats in Spain.

 

Circumstances change along our life and therefore our needs. There comes a moment that once was a perfect home, it is no more now. So to glaze a terrace to avoid cold in winter or noise due to a new opened deafening adjacent road, or maybe to build an additional room and thereby gain a few meters of cover space or to use an aluminum structure in order to expand the kitchen are some options much needed in a particular moment in time.

 

But what are the necessary permission required by our hypothetical home owner living in a Community of Owners?

All permissions must be obtained in writing. To carry out these changes it is required the prior authorization of the Community of Owners and to obtain a municipal building license. Without these permissions, our homeowner may be forced to demolish the work carried out and to rebuild the property to its initial state, so it is not a trivial matter, therefore it is advisable not to start any modifications until all the permissions have been obtained "in writing" and I must stress the in writing part.

 

I have witness the embarrassing situation in my own community of an owner who changed the roof structure of the building (a common element) building some skylights to provide light and ventilation to a his new apartment layout. He did obtain verbal permission from the last president but some owners complained in the General Annual Meeting and the majority of owners were of the opinion that the last president exceeded his authority to grant such a license without the approval of a General Meeting and the General Meeting agreed to ask the owner to demolish the work carried out and to rebuild the property to its initial state. The matter is now pending a judicial decision. Not a pleasant situation by any means.

 

It is my property!!

It is common believe that the terrace belongs exclusively to the owner of the apartment below, but this is not really true. While those living in a block of apartments may have the exclusive right to use and enjoy the terraces, these form part of the external configuration of the building and therefore they are considered common elements. Thus establishes it the Spanish Civil Code in its article 396 which in a nut shell states that although an owner may have the private use of an element of the building, that element does not belong to the owner but to the whole community and therefore the community is responsible to maintain it even though that only one owner can enjoy it or benefit from its use.

It may affect the deeds of the whole building.

 

Thus, covering up a terrace or balcony is a substantial alteration of the common elements of the building and even affects the deeds of the property because it introduces an additional covered space not previously described in the deeds of that property and therefore not calculated when allocating the participation fee of that particular home in the total of the community.

 

To carry out such modification is necessary, therefore, to  have the prior approval in writing of the Community of Owners. It is a building work that clearly alters the external state of the building, this permission has to be unanimous at the General Meeting of Owners.

 

According to article 7.1 of the Horizontal Property Law, the owner of each apartment or premises may modify the architectural elements, installations or services from that when it does not adversely affect or alter the safety of the building, its overall structure, its configuration or exterior state, or prejudice the rights of other owners, such works must be informed previously to those who represent the community.

Even if the Community refuse to allow the works.

 

The refusal of the Community of Owners not always implies the impossibility of performing the works because the agreement could be challenged by one owner (normally the affected owner) therefore, the first step is to inform the President  of the Community about the building works which it is intended to carry out.

 

The notice convening the meeting which will discuss the issue normally it is instigated by the President. It will indicate the place, day and time that the meeting will be held in first or second call. The vote requires unanimity among the neighbours at the meeting. Article 12 of the Horizontal Property Law which states that the construction of new extensions and any other alteration of the structure or building shell or common element that may affect the established title deeds must be subjected to the regime established for the modifications of the same, can only be done if everyone vote in favour. If one of the neighbours does not agree, the work which was intended to carry out cannot be executed. If there is a precedent...

 

However, the refusal of the Community of Owners not always implies the impossibility of performing the work because the agreement may be challenged at law. If the community has given authorization to other neighbours to make similar enclosures, should consent to the person concerned to carry out the work. Even if this permission was not granted but was allowed by not denouncing it. If it did, it would be a comparative tort.



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Comentarios: 16
  • #1

    Larkin (lunes, 04 noviembre 2019 18:49)

    we have put in for licence June 2018
    In august 2019 opted for Alicante architects to carry out
    Then the project was sent minus the plans
    Told plans were lost
    architect took to town hall on a disc 1st Oct
    Now received a letter asking us for information of build quotas taken up by the 30 houses in our community giving 10 days to answer
    surely the town hall have this info and we can't possibly give an answer
    Can you help

  • #2

    Juan Pacheco (martes, 05 noviembre 2019 09:39)

    Helo Larkin,
    Your description of the problem are so brief that I am not quite sure that I understand the actual problem.
    When you say that the project was sent minus the plans, sent to where and by whom?
    If the town hall requests information on the building quota your architect is suppose to answer that question and if he can't, he should contact the town hall and say so.
    I hope that my answer is of help.

    Juan Pacheco

  • #3

    Larkin (martes, 28 enero 2020 11:32)

    we opted to use Alicante architects college as agreement was made with town hall to reduce waiting lists you could choose this option
    we told the town hall our architect didn't have the information
    now we have received the same request almost word for word from Alicante asking again for the information there has been 15 houses of the total who have extended illegally as seen on aerial views but should this illegal build be taken into account ??? when planning is required ..it would cost a great deal for our architect to carry out the work and then if they count the illegal build we would still be stopped from building if quota has been taken up ??
    we are desperate to know what we can do

  • #4

    Juan Pacheco (martes, 28 enero 2020 11:44)

    Hi Larkin,

    I am sorry, but this seem to be a long story and I find very difficult to understand the actual problem.
    Surely your architect must have all the information regarding your project and he or she should provide all the information requested to the town hall.

  • #5

    Larkin (martes, 28 enero 2020 12:08)

    apparently he cannot provide the information without making a plan and measure all the 15 houses that have illegal builds which he says will take a long time at a great cost
    my main question is don't the town hall just count the properties that have applied for licences and that illegal builds shouldn't be counted??in the calculation
    our architect says if they count all the illegal builds the quota has been used so if we do the work to provide the information we still won't be given a licence

  • #6

    Juan Pacheco (miércoles, 29 enero 2020 12:50)

    It seems unfair that your architect should have or make a control of what is being built in the neighbourhood, that is a job that should be done by the Council, not the architect.
    For curiosity. What townhall are we talking about?

  • #7

    P.Bon (sábado, 01 febrero 2020 13:00)

    I had a terraza annex a vivienda with sole access from my living space done with architect and Licenced by the Ayuntamiento but did not put it on my Escritura. At that time 2012 there was no Communidad but recently one was established. Is there any problem ?

  • #8

    Juan Pacheco (lunes, 03 febrero 2020 17:24)

    Hi Bon,

    In theory, there shouldn't be any problem as you obtained your building license before you carried out the works. Obviously you couldn't obtain written consent from the community of owners as it didn't exist at the time.

    Juan Pacheco.

  • #9

    Larkin (miércoles, 05 febrero 2020 17:37)

    you asked which town hall involved it is the Orihuela town hall
    we have requested a meeting so that they can explain themselves
    but even that seems to be ignored
    thanks for your response

  • #10

    Juan Pacheco (jueves, 06 febrero 2020 11:58)

    I suspected that it may be Orihuela!! Extremely difficult to deal with.
    The town hall architect Pilar Manresa at Orihuela keeps a hand written list of all construction carried out in her area. Perhaps a visit to her she may share that list with your architect.

  • #11

    P.Bon (sábado, 08 febrero 2020 12:40)

    Many thanks That helps my peace of mind.. It should be sufficient to have it in writing from the owner below as built on 2 supports in their passageway to avoid a subsequent owner asking the Communidad to require me to remove it? But in any case my Licence from the Ayuntamiento protects me?

  • #12

    Larkin (lunes, 10 febrero 2020 14:12)

    Thanks for your help we are trying to get an appointment with the architect not easy !!!!
    the main question is does the NON legal building count ?
    or should it only be the LEGAL build thet is counted as used build quotas
    should she be able to answer this or do we need to speak to someone else
    Thanks in advance

  • #13

    Juan Pacheco (martes, 11 febrero 2020 19:10)

    Thanks for your help we are trying to get an appointment with the architect not easy !!!!
    You telling me!!

    the main question is does the NON legal building count ?
    Only the bit that you want to be legalized.

    or should it only be the LEGAL build thet is counted as used build quotas
    should she be able to answer this or do we need to speak to someone else
    Se is the best person to through some light onto this business.

  • #14

    Juan pacheco (miércoles, 12 febrero 2020 17:20)

    Hi Bon,
    It is very difficult to answer you not being able to see the actual problem.
    My advice is to obtain written consent from everybody involved if you can, irrespective of your building licence.

  • #15

    John (martes, 22 septiembre 2020 09:14)

    I have a extension on my top rear balcony which was built by the previous owner some 10 years ago, and not built very well and now is causing me problems leaking and materials are rusting through
    I have sent in request to remove and replace with a quality build and with different materials , and to match into the existing building to make it look original, I am having problem with the vise president in that he does not want it built as it will make a president but there are other builds the same as my old one which are proffecinals jobs. And on the front of the property's there are brick built with rendered finish and proper roofs already built which to me have altered the fasard of the buildings as some are plastic concervatory s,which should not happen,were do I stand can I go to administrators and they over rule or as the structure is all ready there and approved prior can I just replace
    Thank you in advance for your comments

  • #16

    Juan Pacheco (martes, 22 septiembre 2020 10:44)

    Let me inform you that the community of owners do not have any authority to allow construction that doesn't make changes on communal spaces.
    If the extension on your balcony is on your private property all your need is a building licence from your local town hall.

    Juan Pacheco

Al ser imposible conocer en profundidad cada caso, todos los consejos y contestaciones a la preguntas realizadas en este blog, los consejos dados son propiciado en términos generales por lo que se deberá contrastar con el asesoramiento privado de un abogado  y/o un arquitecto para estudiar en profundidad su caso.

As it is impossible to know in detail every case asked in this blog all our replies are given in good faith but we strongly suggest that you obtain private advice from a solicitor /and /or  architect who will be able to study in depth your own particular case.