Horizontal property

Opening two doors in a wall to internally connect two units (a dwelling and an office) may seem like a "simple" work, but the Supreme Court (TS) has stated that, in such a case, it cannot be done without the community's agreement when it affects the planned configuration and common elements.

In this case, the owners of two adjoining units carried out works to connect them, opening two openings or doors in the dividing wall. The building was part of a community, which argued that the union had been done without authorization and requested that the works be declared illegal and that the wall and altered common elements be restored, leaving the enclosure as it was originally and carrying out the necessary technical actions , all at the expense of the defendants.

Before the lawsuit, the City Council had suspended the works due to lack of license and this suspension was not appealed. Later on, responsible statements were submitted describing the actions as " conditionings " and then a license was obtained for change of use from commercial to residential. During the meeting, the community of owners reflected majority opposition and agreed to file a lawsuit.

The court ruled in favor of the community of owners, considering it as a "joining" without agreement and ordered to restore the wall, also understanding that the wall had a common nature according to the bylaws (which included "party walls"). However, the Provincial Court overturned this ruling and stated that it was a physical union , without a "legal" joining, and that there was no impact on common elements or on the safety or configuration of the building.

The Supreme Court corrects the Provincial Court. According to the Supreme Court, joining a residence and an office from "different properties", with their own common elements and restricted expenses, amounts to a grouping that requires prior agreement according to the Horizontal Property Act art. 10. 3. b, without being able to distinguish between a "physical" and "legal" union to avoid that permission. Therefore, it accepts the appeal, annuls the Provincial Court's ruling, and confirms the one from the court, ordering to rebuild the wall and restore what was altered.