A neighbour has carried out works without permission or taken over part of a common area: what can the owners' association do? And what if years have passed and nobody said anything?

What the owners' association can do

Under the “Código Civil de Cataluña”, the Catalan Civil Code, works in a flat that affect a common part, such as the façade, the structure, a courtyard or the landing, require a resolution of the owners' general meeting. The town council's permit does not take the place of that resolution, because they are different permissions and one does not replace the other. When faced with works carried out without that resolution, the usual course is to:

• Ask the neighbour by “burofax” (a certified letter with proof of content) to undo the works or give back the space within a reasonable time.
• Put the matter on the agenda of the meeting so that it resolves to take action and authorises the president to bring a claim. A simple majority is enough.
• Attempt negotiation, which the law requires before a claim is brought. This can be proposed in the same burofax, if it genuinely invites negotiation.
• Bring a claim so that the court orders the neighbour to restore the common parts at their own expense and to pay for the damage. If the works are still under way, the court can be asked to stop them while the proceedings last.

The association should not undo the works itself, for example by changing the lock on the space that has been taken over. And if it has allowed other neighbours to carry out the same works, the courts do not usually let it prohibit them for just one.

When the works are treated as consented to

The Catalan Civil Code treats works that nobody authorised as consented to only if all of these conditions are met:

• The works were obvious, that is, in plain view and capable of being known by anyone.
• They do not reduce the structural soundness of the building.
• They do not occupy common parts.
• They do not create new easements, that is, permanent burdens on the building for the benefit of the flat, such as a drain running through a common wall.
• The association has not objected within the four years following completion of the works. If the works were completed in March 2023, the four years end in March 2027.

It is a time bar, so in principle a claim does not make it start again. The law does not make clear whether a letter or a resolution of the meeting is enough to object. The safe course is to bring a claim before it expires, leaving time for the prior negotiation. If even one condition is not met, this rule does not protect the neighbour, although other time limits may apply. Outside this case, the fact that the neighbours knew the works existed does not mean that they consented to them. And for anyone planning works, this rule is no substitute for permission, because until the four years have passed they risk having to undo them. This rule does not exist in the rest of Spain. There, the courts assess case by case whether there was tacit consent and, if there was not, the “Tribunal Supremo”, Spain's Supreme Court, gives the owners' association thirty years to demand that the common parts be restored.

If a neighbour has taken over a common area

Closing off part of the landing to join it to the flat, taking over part of the flat roof or using a shared room as one's own amounts to occupying common parts. The four-year rule does not apply to that. For a neighbour to have exclusive use of a common area, a unanimous resolution is required. In principle, the association can reclaim the space even if many years have passed, because the Catalan Civil Code states that the action to recover ownership of property does not become time-barred. Compensation for the damage, however, is subject to a time limit of three years. Even so, it is best not to wait, because over the years proof becomes more difficult and the neighbour may argue that they have acquired the space through the passage of time.