The question I intend to address in this article concerns the difficulty felt by many apartment owners and condominium administrators to access the roof or the terrace when the access is made through fractions located on the rooftop. The question that arises often relates to whether the owner of these fractions joint owner may refuse access.
The answer in plain common sense is NO. But the law is more restrictive requiring motivation. Thus, owners of rooftop units are required to provide access to coverage if indispensable to pass him the materials for the work or practice similar acts, or even raise scaffolding and may be compensated if you suffer any injury. (Cf. Article 1349 of the Civil Code: 1. “Whether to repair any building or construction, is essential to raise scaffolding, placing objects on another’s building, passing by it the materials for the work or perform other similar acts, the owner needs to grant consent to these acts. “And in any case under this Article, the owner is entitled to compensation for the damage suffered.
The same understanding comes from a ruling from the Tribunal da Relação de Coimbra in 27/05/2014: “all apartment owners are allowed access to the roof tiles to repair or place the required equipment and access can be done from the inside other owners apartments” and from a ruling of Tribunal da Relação do Porto in 10-03-2005″. “Owner of apartments in a building in which it must perform works are required to consent that the property is momentarily occupied in order to carrying out such works, if such occupation is essential to that aim”. To that occupation is the person in charge of works liable to compensate the owner of the building occupied if any damages result of the intervention, and is required to reconstruct the situation that would exist had it not been checked the event requiring the repair, and this obligation to indemnify exists only in relation to the damages which the plaintiff would probably not have suffered the injury was not. (art. 563 º of the Portuguese Civil Code).
And in other cases?. Here it seems to be applying the ownership rules wings. So says Article 1406 of the Civil Code (Using the common thing) that:. ‘1 – Failing agreement on the use of common, any of the joint owners is lawful to make use of it, provided that the non-employed to order different from the things that is intended and does not deprive others of the use to which consorts equally entitled. “2 – The use of the common things for one of the co does not constitute exclusive possession or possession superior to his share, unless there has been reversal of the title. ». In our view, treating the terrace or the roof as a common outside the necessity for works and reparations the proprietors and the Administration can also access to the terrace from if the use is not different from the one that the area is intended and if the private use does not deprive other proprietors of use similar.
Sandra Nunes
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