Q: Private gardens must pay condominium fees?
A: In our view yes.
In fact, the permilage rule included in article 1424.º n.1 of the Civil Code states that the owners must pay the respective Condominium Fees according to their permilage, with the sole exception of commun services that they could not use (Nº2).
In this situation, there’s no doubt in our mind that the gardens are “comum parts” because the owners could use and benefit from the use of the gardens. In the law the gardens are presumed to be common areas, in the terms of the art.1421.º n.2 a) of the Portuguese Civil Code).
Also the exception to the permilage rule provided in n.2 of the same article which allows that the Condominium Regulation permits that the contributions for the maintenance services could be payed according to fruition is not aplicable in case.
In the same spirit, the Portuguese Supreme Court rules that “none of the owners could be exempt totally or in part from common part costs if there’s an objective possibility of fruition, eventough the owner does not want to use it” (Ac. STJ, 15.12.83: BMJ, 332º-475).