Who has to claim for damage to terraces or façades?
Sometimes, when a homeowners’ association claims for construction defects due to poor workmanship, the question arises as to whether the terraces of certain owners, which suffer from water ingress and have poorly designed drip sills, should be claimed for by those owners, or whether it should be the homeowners’ association that claims for them. The same applies to cracks in the cornices and façades of those terraces.
On this point, it should be made clear that the Civil Code establishes which elements of the building are communal, including terraces and façades, since these are elements that must be maintained jointly by the residents, as they are necessary for the proper use and enjoyment of the building.
Thus, article 396 of the Civil Code states
“Over the communal elements of the building, which are all those necessary for its proper use and enjoyment, such as the land, airspace, foundations and roofs; structural elements, including columns, beams, floor slabs and load-bearing walls; the façades, with the exterior cladding of terraces, balconies and windows, including their appearance or configuration, the enclosing elements that form them and their exterior cladding; the entrance hall, stairs, porter’s lodges, corridors, passageways, walls, pits, courtyards, wells and the enclosures intended for lifts, tanks, meters, telephone systems or other communal services or installations…¨
Damage to communal terraces and façades must therefore be claimed for by the homeowners’ association as communal areas.
Where does it state whether a terrace is private or communal?
The title deeds, the deed of horizontal division or even the association’s statutes may describe that element and whether it is for communal or private use.
Terraces are normally communal elements for private use, that is, although they form part of the communal elements of the building, they can only be enjoyed by the owner of the home. Communal terraces or roofs are a different matter, as they are both communal in nature and in use.
But as we say, the resident has the obligation (and the right) to have their terrace repaired by the homeowners’ association or by those responsible for the damage, providing access and allowing the relevant maintenance works to be carried out, as provided for in the Horizontal Property Act.
So who can claim for the terraces?
The homeowners’ association, represented by the president of the homeowners’ association, who can claim for the damage on behalf of the association, in both communal and private areas. The president has standing to act on behalf of and for the benefit of the association under article 13.3 of the LPH. And in this case, since terraces and façades are communal elements of the building, there is all the more reason for the president to claim for these defects in the interests of the association.
In any case, as a general rule this is the most usual approach, and what we normally do at DPcon: all the damage in a homeowners’ association (whether in communal areas or private areas) is claimed for by the president on behalf of the whole association. Provided that the president has been duly authorised at an owners’ meeting, with an approved agenda item allowing the president to claim for that damage on behalf of the residents
If you have any questions, get in touch.
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