In this case, a neighbor from a lower floor suffers damage from a water leak . The origin of the problem was in a terrace located above , a terrace that, although it was exclusively used by one owner, legally was a common element for private use (that is, it belongs to the community, but only one neighbor enjoys it).

The specific cause of the leak was quite "domestic," the drain of the terrace got clogged because it was blocked by a flowerpot , and the water ended up leaking and causing damage.

After compensating the affected party, the insurer that paid for the damages decided to claim the money and sued two:

- on one hand, to the owner who had exclusive use of the terrace;

- on the other, to the community insurer , requesting that both respond jointly (that is, either of them could be ordered to pay).

The Provincial Court (AP) of Navarra concludes that, in cases of damage from leaks originating from a common element (even if it is for exclusive use), an objective liability operates and the one who must respond is the community (through its insurer), because the element is communal.

In contrast, the owner of the apartment with exclusive use rights is exonerated , the court understands that he cannot be held liable for there being no attributable negligence , also highlighting that he did not reside in the property, which prevents attributing that negligent behavior to him in the terms discussed in the lawsuit. For all these reasons, the community insurer is liable, and the owner of the exclusive use does not respond.