Garage declared unfit for use that cannot be repaired.
We have a judgment that orders repair works to be carried out in the basement, because the parking spaces are small and even the spiral garage ramp used by cars to enter and exit is so narrow, with such a tight curve, that driving up and down is unfeasible or a torment. There are traces of car paint on the walls enclosing the ramps. Only an exceptional driver (with a car that is not very big) would avoid scraping the walls when parking in their space, usually leaving paint on them and a dent in the car’s bodywork. The ruling was obvious, the court saw it that clearly, and ordered those repair works to be carried out, together with others, for construction defects, in favour of the homeowners’ association .
But when it comes to enforcing the judgment and carrying out the works, how can they be done? Are we going to widen the spiral ramp without affecting the building’s structure? Are we going to replace or reduce the size of the concrete columns with steel beams? How is the repair to be tackled? Would the deed establishing the horizontal property regime of any unit be altered? Nothing, or almost nothing, is impossible, because there is always some technical procedure that could solve it, but it would obviously be outrageous in terms of cost, risk, reason and common sense.
What is the monetary equivalent?
The First Chamber of the Supreme Court, in its judgment of 20/10/2006, pointed out that there are cases in which, because enforcement of the judgment on its own terms is impossible, the remedy of converting it into its «monetary equivalent» must be used, without this constituting an infringement of the fundamental right enshrined in article 24 of the Spanish Constitution.
And the Constitutional Court, in its judgments 69/1983, 125/1987 and 167/1987, states that it is just as constitutional for the enforcement of a judgment to comply with the principle of total identity between what is enforced and what is declared in the ruling as for an enforcement in which, for justifiable reasons – such as enforcement being impossible – that order is replaced by a «monetary equivalent». In other words, by compensation in money.
CONCLUSION
- Compliance in natura with the ruling of a judgment can be replaced by its «monetary equivalent» provided that enforcement of that ruling proves impossible.
- Courts have even accepted the enforcement of the judgment by its «monetary equivalent» where there is economic disproportion, where the demand of the enforcing party (the injured party) was abusive and the party against whom enforcement was sought (the defendant) had acted in good faith.
How is the amount of money calculated? By compensating each of the owners affected by that narrow ramp with the price of a parking space as close as possible to their home or building, plus the notional compensation equivalent to the loss in value of their home from not having a parking space in the building itself.
Nothing else would make sense, because is it more reasonable to go down the route of propping up the building and removing columns or load-bearing walls in the basements? In certain cases, no.
And compensation is the most logical option here. If you have any questions, consult us.
Any questions?