Changes made to balconies and terraces are one of the most sensitive issues in condominium management, especially when they touch common elements and end up causing damage to neighboring units. This issue, which involves unauthorized works, responsibilities for infiltrations and condominium owners’ duties, raises central legal questions for those who live in buildings on horizontal property. In this specific case, the issue was a jacuzzi installed on the terrace without authorization.
The decision of the Oviedo Provincial Audience ruled in favor of the owner of the lower floor, concluding that several structures installed on the terrace of the upper apartment, including a jacuzzi, covers and several closures, had modified the water drainage system and caused persistent infiltrations. The court confirmed that such changes required community authorization and that the heirs of the former owner would have to dismantle the works and repair all damage.
Essential of the Spanish decision
The sentence, dated September 17, 2025, explained that the interventions carried out on the balcony did not have any community approval and affected common elements such as waterproofing, the slope of the floor and the drainage system. The owner of the lower floor confirmed, with expert reports, that the infiltrations corresponded directly to the changes made to the terrace, according to the Spanish digital newspaper Noticias Trabajo.
In 2024, the Juzgado de Primera Instancia nº 4 of Oviedo had already determined that there was an obvious causal relationship between the works and the damage. It ordered the owners of the upper floor to remove the structures, replace the original facade and pay for the losses suffered by the neighbor, valued at 1,962.27 euros. The Audiencia only confirmed the essence of this decision.
Works in common elements and civil liability
According to the Spanish court, the structures installed on the terrace, such as the jacuzzi, altered the functionality of common elements and were executed without any approval from the community, violating articles 7 and 17 of the Ley de Propiedad Horizontal. The Chamber also recalled article 1902 of the Civil Code, which imposes liability on anyone who, through negligent action, causes damage to third parties.
The ruling determined that the waterproofing would have to be completely redone, correcting slopes, replacing drains and ensuring that the terrace returned to fulfilling its structural function. Although the decision was not yet final, it allowed for an appeal to be lodged with the Supreme Court if there was a marital interest, under the terms of article 477 of the Civil Law (LEC), in accordance with .
This case had happened in Portugal
In Portugal, an identical situation would have a very similar legal framework, although with relevant differences in the horizontal property regime.
Under the Civil Code (CC), balconies, roof terraces and rainwater drainage structures are, as a general rule, considered common elements of the building (articles 1421 and following), unless otherwise provided in the constitutive title. Modifications that affect these elements require prior authorization from the condominium assembly, taken by a majority representative of the value of the building or, in certain cases, unanimously, in accordance with article 1422 of the CC.
From a Portuguese point of view, the installation of a jacuzzi, fixed covers, air conditioning machines or enclosures added to common elements constitutes a relevant change, which is why it would have to be voted on and approved by the assembly, as also established in articles 1422 et seq. of the CC.
Owner’s duty of conservation and responsibility
Article 483 of the CC determines that condominium owners are responsible for the maintenance of their unit and for damage caused to common parts or to other people’s units. The execution of works that modify waterproofing or drainage, and that cause infiltration, generates direct liability for losses and damages.
Additionally, the same article establishes the general rule of non-contractual civil liability: whoever causes damage to another, even through negligence, is obliged to compensate. In cases of infiltration, Portuguese courts systematically understand that it is enough to verify the cause-effect relationship between the works and the damage to attribute responsibility to the owner who altered the terrace or balcony.
The Spanish case confirms a rule that is also valid in Portugal: works without approval that interfere with common elements or the water drainage system often end up in legal litigation. The responsibility lies with the owner who makes the changes, who will have to remove the works, correct the waterproofing and compensate for the damage caused.
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