1. Garages and common parts of the building. In order to assess whether the garages and parking spaces will be common parts or not we should take into account the provisions of Article 1421 of the Civil Code number 2, assume it as common garages and other parking spaces (d) of that Article, that is, if there is no definition in the title deed that garages belong to a certain fraction, they are presumed to be common building parts. On this point says Porto Court of Appeal that in relation to the common parts of building (affected or not the exclusive use of one or a few) each owner has a simple right of co-ownership.(Ac. RP, de 16/1/1996) On the other hand the judgement of the Court of Appeal of Lisbon states that, altough Article 1421 number 2 sub-paragraph d) of the Civil Code, assume that garages and other parking spaces are common, such a presumption may be rebutted if it is proven that they were assigned by the constitutive title property to one or some of the apartment owners. (Ac. RL, de 6/5/2008) That said, it is our unanimous view that garages and other parking spaces are presumed common if there is a constitutive title that says it shall be allocated to a separate fraction. 2. Ban on use different from that to which it is intended. On this point should be borne in mind the provisions of Article 1422 number 2 sub-paragraph c) of the Civil Code, in relation to the limits of property rights and ownership of the apartment owners. Thus, if the constitutive title property is silent as to the purpose it is intended each fraction can the condominium, in principle, use it for any purpose not prohibited, and this prohibition may result, primarily, of the inconsistency of the intended use with the constant order of city council project, if it exists and has set. In this particular case, the joint owner who use the fraction to a given destination, can give it another use, therefore, obtained an authorization of the Assembly approved by a majority of two-thirds of the total value of the building. I – Affirms the judgement of the Supreme Court to establish that ” are presumed still common garages” Article number 1421 number 2 sub-paragraph d) of the Civil Code – referred first and foremost to the wishes expressed in the constitution of horizontal property elucidation of the nature of space and arranged for his absence by establishing a rebuttable presumption. II – The fact of imposing the projects indicate the destination or use has a “purely technical motivation related to the safety requirements in the construction of buildings, conditions which vary according to the type of use envisaged”, as note the Ac. STJ de 12/6/1991. III – Only one has as required, under penalty of partial nullity, compliance assigning the destination or use, as the common part as the autonomous fraction of the constituent or amending the title of the horizontal property with the constant of the Municipal Council project. (…)” (Cfr. Ac. STJ, de 21/5/1996). I – On the other hand, it is taken of the judgement of the Lisbon Court of Relationship, the first consequence to be drawn from the use of an autonomous fraction for purpose other than that which is intended is the prohibition of continuation of such use even if developed by a third party without the consent of the respective condominium. II – Another possible reaction to compensation for damage produced complements that, since first and foremost it is necessary to obtain the cessation of a state of anti-legal things when endures. (Ac. RL, de 24/11/1994) Although this article speaks of fractions, this also can assume that apply to common shares in accordance with the provisions of Article 1406 number 1 of the Civil Code which translates into the following: ” In the absence of agreement on the use of common thing at all the owners is lawful to make use of it, provided that the not used for purpose other than that to which the thing is designed and deprive other consorts use that also have the right”.
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