An owner managed to stop the installation of an elevator in his condominium after demonstrating in court that the work did not need to occupy his private courtyard (exclusive use). The decision was confirmed by the Madrid Provincial Audience, which concluded that the community could have gone ahead with the installation in common areas, without imposing this sacrifice when a technically viable alternative solution existed.
According to Noticias Trabajo, a Spanish website specializing in legal and labor matters, the case began at a condominium assembly held in March 2021, when the community decided to move forward with a construction project 2017 which planned to partially occupy patios for private use to build the elevator.
The affected owner contested the measure as he considered the intervention to be disproportionate and because there was an alternative that did not involve occupying his exclusive use space.
Court recognizes that the patio did not have to be affected
The Juzgado de Primera Instancia no. 102 of Madrid analyzed the case and concluded that the community had not demonstrated that the installation in the courtyard was indispensable. The decision declared the agreement null and void because there were options within the building’s common areas, namely in the stairwell, which allowed the elevator to be installed without interfering with the private courtyard.
The Provincial Audience confirmed the sentence and added that the expert reports presented by the community, despite pointing out technical and structural difficulties, did not rule out the viability of a less intrusive alternative.
Alternative existed and was legally preferable
At the basis of this type of dispute is a recurring principle in Spanish jurisprudence: the community can, in certain cases, impose an “easement”/occupation in a private space to create a common service (such as an elevator), but only when this is essential, and without removing the habitability/functionality of the affected space, in addition to the duty to compensate for damages.
In the reported case, the court considered that the occupation of the courtyard was not necessary because there was an alternative in common areas, and that the condominium cannot impose a burden on a condominium owner when there is another viable solution, even if that alternative is more complex or expensive.
According to , the initial project would also imply significant impacts during the work, including interventions on the stairs and the creation of prolonged constraints on access.
Decision can still be challenged
The Provincial Hearing concluded that the elevator will not be installed in the owner’s private courtyard, but the decision is not final and may still be appealed to the Supreme Court.
And in Portugal?
In Portugal, the installation of an elevator in a condominium is, as a rule, treated as an innovation work in common parts and is subject to the majority rules provided for in article 1425 of the Civil Code (with rules that vary depending on the type of building and the framework of the deliberation).
Furthermore, Portuguese law establishes that, in common areas, innovations capable of harming the use, by any condominium owner, of both their own and common property are not permitted, which requires a judgment of proportionality and is often discussed in court when a solution causes significant harm to a resident.
Also read:
