Malaga provincial court orders homeowner to remove retractable glass enclosure from his terrace
Initially, a Marbella court ruled in favour of the property owner, arguing that the impact on the building's aesthetics and layout was "minimal", but the community association of homeowners appealed the judgment
The provincial court of Malaga has forced a Marbella property owner to remove the retractable glass enclosure from his terrace after the homeowners' association he is part of complained that he had not asked for permission to modify the original configuration of the building.
To enable the installation, the man had extended the original roof and added white aliminium profiles. But he did so at his own risk, without consulting or asking permission from the homeowners' association, which denounced him before the court.
A Marbella court sided with the owner, stating that it was a glass system with frameless panels, which allowed all the pieces to be folded away, leaving the space completely open without any visible elements beyond the glass itself and the small aluminium profiles supporting the rails. Therefore, while the dwelling would be protected from inclement weather by the structure, its visual impact was reduced. This first judicial ruling underlines that work carried out by residents "must be adapted to social reality and new technologies, modulating the rigour of the substantive norm of reference".
Far from accepting this ruling, the homeowners' association appealed to the Malaga provincial court, which has now overturned the first ruling, considering that there has indeed been a modification of the common element. "It is indisputable that the terrace forms part of the facade and this type of enclosure, even when made with translucent materials, involves an alteration of the original configuration of the building, just as if it were made with masonry materials."
The question to be clarified was whether this "enclosure" entailed a breach of article 7 of the horizontal property law (LPH), which provides: "The owner of each flat may modify the architectural elements, installations or services of the flat, when it does not impair or alter the safety of the building, its general structure, its external configuration or state or prejudice the rights of another owner and must give prior notice of such work to the person representing the association." Specifically, paragraph 2 establishes that the individual owner cannot carry out alterations to the common elements, stating: "In the rest of the building, no alterations whatsoever may be carried out; if the owner notices the need for urgent repairs, they must inform the administrator without delay."
According to the provincial court, there "is certainly an alteration of the façade, of the exterior configuration and of the aesthetics of the building", because although the technical characteristics of the glazing are those described by the manufacturer, "it is an enclosure of the terrace to all intents and purposes".
Therefore, the court ruled that there had been a violation of article 7 of the LPH. This past March, the court ruled against the owner and ordered the removal of the glass enclosure. Furthermore, the court ordered the owner to return the terrace to its original state, as the renovation involved a modification of the building's façade that did not have the required authorisation from the homeowners' association.
