Court of Appeal in Madrid imposes an obligation to rebuild
even if the intervention was carried out by the previous owner.A recent ruling by the Provincial Court of Madrid provides clarity on a question that is practically relevant for many communities of owners, including in Mallorca –: Who is liable for structural alterations to community property if the person responsible has long since sold?
The court's answer is clear: the current owner bears the responsibility.
Interventions in the common property remain subject to approval
The starting point of the proceedings was the subsequent installation of several air conditioning systems on the roof of a residential building. The systems were mounted on a metal structure, pipes were laid and structural alterations were made without the consent of the owners' association.
The court clarifies:
Even if there are technical problems or a use is to be improved, this does not entitle the owner to use communal areas such as roof terraces for their own purposes.
The legal basis is the central provisions of the Spanish Home Ownership Act (Ley de Propiedad Horizontal), in particular:
- Changes to common property require consent as a matter of principle
- Optical and structural interventions are not permitted if they change the appearance
Technical arguments do not work
In the specific case, it was argued that the original systems inside the apartments did not work. The relocation to the roof was therefore necessary.
The court rejects this argument: planning errors or technical defects do not justify interventions in community property.
In other words: Whoever remodels or repurposes bears the risk– not the community.
Decisive point: liability „propter rem“
The legal core of the judgment is particularly relevant: the so-called „obligations propter rem“.
This means:
- Obligations are tied to the property, not the person
- On change of ownership, these obligations are automatically transferred
In concrete terms, this means that even if the previous owner made the structural alterations, the current owner is obliged to
- to remove the installations
- and restore the original state
Rückbau statt Teilkorrektur
While the court of first instance had only ordered the reconstruction of the facilities themselves, the court of appeal went further:
The complete restoration of the original condition was ordered, including:
- Removal of all constructions
- Rückbau von Leitungen und Installationen
- Restoration of the roof structure and appearance
Community of owners does not have to prove damage
Another important aspect: The community of owners does not have to prove any specific damage.
The following applies:
- that an unlawful alteration has been made
- or the appearance or use of a common area has been impaired
Relevant in practice for buyers on Mallorca
The ruling has direct consequences for real estate buyers:
Prepare before buying:
- Minutes of the owners' meetings
- Existing conflicts or resolutions
- Constructional changes to the common property
Because: If a measure has already been rejected by the community, the new owner can later be obliged to carry out the reconstruction - regardless of who originally carried out the work.
This is what the judgment means for real estate buyers
The ruling clearly strengthens the position of owners' associations and sets clear limits for individual interventions. For buyers, this means one thing above all: due diligence does not end with the land register and cadastre, but extends to the community's collections of resolutions.
