A community of property owners demanded from the owner of a premises to return the use of a common courtyard that she had closed and occupied without permission from the community. The neighbors were upset because the owner roofed the courtyard and turned it into a private use space for herself, carrying out works without consulting or requesting authorization from the rest of the property owners.

According to the premises owner, she had been using the courtyard since 1972 and no one had said anything for decades, so she believed that there was a “tacit” agreement on the part of the community, or at least some tolerance. She also argued that the deadline to claim had already expired on the part of the community and that the right had “prescribed” over time.

The issue reached the Supreme Court (TS) after the Provincial Court ruled in favor of the owner, considering that there was that tacit consent on the part of the community by not having officially opposed for years. However, the TS clarified that, when it comes to common areas of the building, any work or exclusive use requires, without exception, the express and unanimous approval of all neighbors. Neither mere passivity nor knowing the facts for years implies community agreement.

Therefore, the TS sided with the community, the courtyard remains for everyone, there is no document granting private use rights to the owner, and she must return it and leave it as it was before the works. In addition, the community still had legal time to claim, as the deadline for this type of actions is long (30 years). Our professionals can provide you with proper advice on the functioning of your community and the adoption of agreements in accordance with regulatory requirements, as well as take appropriate actions to defend your rights