We have been asked, in the case of a shared garage association (mancomunidad de garajes) set up for garages shared by two homeowners’ associations, where water ingress has been found affecting several parking spaces and storage rooms belonging to one particular homeowners’ association, who should be liable for this damage : one homeowners’ association, the other, or the shared garage association.
The homeowners’ association’s maintenance obligation.
First, we should remember that article 10.1 of the Horizontal Property Act (LPH) 49/1960 of 21 July, in paragraph a), establishes that the work and building works necessary for proper maintenance are compulsory, as is compliance with the duty to preserve the property and its communal services and installations, including in all cases those needed to meet the basic requirements of safety, habitability and universal accessibility.
In this respect, case law has held that, where leaks or flooding result from the poor upkeep of the building and its installations (even if shared with other buildings), particularly when the owner has drawn attention to that poor condition, article 1907 of the Civil Code applies (Supreme Court judgments of 20 April 1993 and, more recently, of 1 July 2000), and the homeowners’ association is only released from liability where the negligent involvement of a third party is proven and nothing can be held against the association’s conduct, or where its conduct played no causal role (Supreme Court judgment of 19 December 2006).
In other words, the homeowners’ association of the affected owners must indeed be responsible for maintaining and repairing the source of the leaks, without prejudice to the right of recourse or to claiming, where appropriate, against the shared garage association, the water utility concession holder or whoever it may be.
In addition, in the case in question, an “ad hoc” easement had clearly been created over the use of the garage and the contribution to its costs up to a certain physical limit (up to the two doors giving access to the storage rooms and to the exit of each building, which is precisely where the leak had occurred), so what was agreed in the easement will prevail over everything else.
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