Who pays for repairs to a communal terrace for private use?

What the owner who uses it pays for

The Catalan Civil Code makes whoever has exclusive use responsible for all the costs of upkeep and maintenance of the terrace and requires them to keep it in good condition. In practice, they are responsible for:

• Cleaning and checking the drains and gullies so that they do not get blocked.
• The paving and anything that wears out with everyday use.
• Damage caused by overwatering, very heavy planters or furniture, fixings and any works they have carried out, especially if carried out without the owners' association's permission. If these damage the waterproofing or the structure, they pay for the repair.
• Any installations they have put in for their own use, such as solar panels, whose maintenance is entirely their responsibility.

What the owners' association pays for

The owners' association must keep the common parts safe and free from water leaks. That is why it is responsible for repairs that benefit the whole building and those due to construction or structural defects, such as defects in the floor slab, which is the floor separating the terrace from the home below. As a rule, it is also responsible for waterproofing that has worn out over the years. There are also other rules worth knowing:

• If the owners' association claims that the fault is due to the owner's misuse or poor upkeep, it is the association that has to prove it.
• If the leaks come both from a lack of maintenance and from a construction defect, the “Audiencia Provincial” of Barcelona, the provincial appeal court, has held both liable.
• The owners' general meeting cannot, by a simple resolution, make the owner pay for a repair that the law places on the owners' association. But if it so resolves, the owner must vote against it or, if they did not attend the meeting, object in writing, in a way that leaves a record, within the month following notification. Otherwise, they will not be able to challenge the resolution. The time limit for challenging it may be as short as three months from receipt of the minutes.
• If the repair means taking up the paving or removing the planters or an enclosure that the owners' association authorised, the association usually also pays for putting them back, unless the fault comes from the owner's misuse.

In the rest of Spain there is no written rule as detailed as this, but the courts reach a similar allocation.

Before making a claim

• Check in the deed of division into units (“escritura de división horizontal”) that the terrace is a common part for exclusive use. If it is privately owned, either as part of the flat or as one of its annexes, its owner maintains it. If it also serves as the roof of the building, who pays for the structure and the waterproofing may be open to dispute.
• Read the owners' association's by-laws in case they say anything about the costs of the terrace.
• Notify the president or the managing agent in writing as soon as the leaks appear. Send photos and ask the owners' association to repair what it is responsible for.
• Ask a building professional for a report stating where the leaks come from, for example the drain, the paving, the waterproofing or the floor slab. Keep the maintenance invoices, which prove that you have carried it out.
• If the owners' association does not repair what it is responsible for, you can demand the repair in writing and, if no agreement is reached, sue the association. Before suing, the law requires an attempt at negotiation.

Any damage the water causes to the flat below is a separate matter, usually resolved through insurance.