The legality of the occupation of a common element by one neighbor for his private use, in a complex governed by the Horizontal Division Act/Law,.

Posted on by Carlos Baos
Consultation:

In my urbanization there is a neighbor who is occupying a communal space as if was his own private terrace. It’s part of the communal space used by all the neighbors to park. He has even put some furniture, chairs, table, umbrella, etc., there. Is that legal? Could we do something?.

Dear reader, thank you for the consultation.

We understand that:

1.- There is communal area for parking. It is not divided and there are not numbers or divisions, and it is not agreed where each neighbor should park. Therefore, all neighbors have the right to park in any part of the parking area. And there is no agreed or recognized right of a private use for any part of this common element.

2.- One neighbor is occupying permanently a part of this communal parking area, with some furniture, table, chairs, using that area as his private terrace.

As there is not a specific marked, allocated and individual area to park for each neighbor, a common element cannot be used privately by one owner, exactly as he can’t claim private and exclusive use of a part of the swimming pool, not allowing anybody to swim in that area.

It would be different if one neighbor had the private and exclusive use of a marked allocated parking space which is within a common area, but used that parking for other purposes ( for a terrace or storage rather than a parking), in that case, it could be discussed whether is possible or not.

But, in your case, as far as I have been informed there is no exclusive right of use of that marked area for only that neighbor, so he cannot justly use it, without the agreement of the community.

This occupation I think is against the horizontal division law, particularly article 9 of the LPH (point 9.1.a) which indicates: the obligation of each owner to respect the general installations and common elements of the community, using them properly and avoiding causing damages.