The community of owners must pay for the repair of a terrace even if it is for the private use of one of the owners if the deterioration is structural and not structural

It is the responsibility of the owners’ association to pay for the repair of the terrace for private use if the asphalt membrane, which is responsible for waterproofing the building, shows wear and tear. In situations where the leaks and dampness are a consequence of the structural deterioration of the slab or the waterproofing, the responsibility will fall on the owners’ association, which will have to pay for the repair costs, as long as there has been no misuse or lack of maintenance on the part of the owner who has the private use of the terrace assigned to him. This is what the Supreme Court has stated in a recent ruling, which you can download here.

The specific case

In the case in question, the plaintiff, owner of a property with a roof terrace, claims from the community of owners the cost of the repairs made to the roof terrace. The repair was necessary in order to prevent damage to her property due to water seepage. Although the claim was initially rejected in previous instances, the Supreme Court has reversed the decision and has obliged the defendant community to compensate the owner with the claimed amount.

In this specific case, the terrace is considered simultaneously a private element due to the use attributed to the plaintiff owner, and a common element due to its structural nature as part of the roof. However, it should be clarified that in this type of situation where there are concurrent obligations on common elements with private use, it is up to the owner benefiting from the use of the common element to carry out works on it:

• it is up to the owner benefiting from the use of the common element to carry out conservation or repair works arising from ordinary use or negligent behaviour.
• it is up to the community of owners to carry out extraordinary repairs or those arising from construction or structural defects.

In conclusion, the determination of who should finance the repair depends on the nature or cause of the damage in each case. If the repairs are related to the ordinary maintenance of the terrace, the responsibility lies with the owner. However, if it is a structural defect affecting the very configuration of the terrace as a building element, the repair must be made at the expense of the common funds.

The judgement

In the Supreme Court ruling STS 80/2024, of 23 January, it is concluded that the damage caused due to the deterioration of the asphalt fabric, responsible for the waterproofing of the building and located under the floor of the terrace, which serves as the roof of the building, is considered an essential element of the community of owners. Therefore, the repair of such an element is established as a common obligation of the community.

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Browse our blog and find out about the most important legal, doctrinal and jurisprudential developments in the field of Horizontal Property and remember the importance of having the advice of a specialised lawyer, who can guarantee you to be protected against the problems arising within your community of owners, either with your neighbours of the building or with the adjoining ones. At Font Mora Sainz de Baranda – lawyers and economists – we have professionals who are highly specialised in civil and condominium law. All of them will be able to offer you the appropriate advice for your specific case. Do not hesitate to contact us and ask for an appointment now.

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