Judgment 10624/2022 (Common Space Modification)
The modification of building appearances through owner interventions in common and shared spaces is a prevalent issue, particularly in urban areas with intensive development prior to the 1990s. These alterations often include installing awnings of different materials or colors, repainting exterior walls on apartment balconies, converting windows to balcony doors (or vice versa), installing large fixed canopies on penthouses, and enclosing balconies with glass.
In the case under discussion, our clients owned an apartment with exclusive use rights to a common space balcony on the building's rear. This balcony, accessible from their bedroom, adjoined a similar balcony of the neighboring apartment. The neighboring owners installed a fixed structure (a synthetic foliage panel) on their balcony at the point where the two balconies met, ostensibly to block visual access to our clients' balcony.
Our clients initiated legal proceedings to remove the structure, which had been installed in the common balcony area without the consent of other co-owners. The lawsuit was based on the legal principle that the construction impaired the building's appearance by exceeding the original architectural design, thereby infringing on each floor owner's property rights and usage.
Articles 3 (paragraphs 1 and 2) and 5 (paragraph 1) of Law 3741/1929 stipulate that in the absence of a specific agreement among all co-owners regarding the use of common and shared building areas, each co-owner may undertake repairs, renewals, changes, and additions. However, these modifications must not impair other co-owners' rights or usage, compromise building safety, alter its aesthetic or architectural appearance, or change the usual purpose of these areas. The permissibility of such changes is evaluated on a case-by-case basis.
The concept of "unimpeded use of separate ownership" by floor owners encompasses the right to maintain the building's appearance in a manner consistent with its aesthetic and architectural integrity. Consequently, any addition to the building that compromises this appearance, by exceeding the original architectural design, is deemed to impair each floor owner's property use and is thus impermissible under these provisions.
The Court dismissed the lawsuit as unfounded, despite presenting reasoning that appeared contradictory to its conclusion. While acknowledging the absence of a building regulation, the unauthorized placement of the construction in a common space, and its deviation from the original building plans, the Court ruled that the structure did not affect the building's exterior walls or structural elements. It further stated that the construction, despite protruding 1.40 meters from the built parapet, was small and did not significantly impact the plaintiffs' apartment's brightness, ventilation, or view, nor did it compromise the building's aesthetic architectural appearance due to its location at the rear.
In our professional opinion, the Court's decision is erroneous. Despite recognizing that the panel was installed in a common space without proper authorization and deviated from the building plans, the Court concluded that it did not affect the architectural appearance. This ruling fails to provide legal certainty. Property buyers consider the appearance of an apartment building as a factor in their purchase decision. In a state governed by the rule of law, owners should feel secure that the common and shared spaces (including the building's appearance) will not be altered over time without their consent. The Court's role should be to enforce the law consistently by mandating the restoration of property to its original state as depicted in the building plans, rather than basing decisions on subjective aesthetic judgments.
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Excerpt from the Court Decision
The plaintiffs have in their full and exclusive ownership, possession and holding, in an undivided share of 50% each, an apartment in building A of a complex consisting of two (2) adjacent buildings with separate entrance each (buildings A and B), located in ………., in the building block number ………., on ………. street. The apartment building A in which their apartment is located bears the number ………. on ………. street. It consists of two rooms, living room - kitchen (unified space), bathroom, WC and a semi-outdoor space of 11.84 sq.m.. The apartment corresponds to and is allocated a share of 9.050% of the undivided land and other common and shared spaces, parts and facilities of the complex. The plaintiffs became owners of the apartment by virtue of the sale contract number ………. of notary public ………., which was legally registered in the Land Registry Office of Thessaloniki on ………., with registration number ………. as sale and establishment of divided property. Therefore, with the registration of the last notarial deed with this justification, horizontal property was established on their apartment.
The defendant has in her full and exclusive ownership, possession and holding in the same above "A" building an independent and divided apartment, located on the first floor, the left apartment for one facing the building from ………. street, bearing the characteristic element ………. on the floor where it is located. It consists of two rooms, living room - kitchen (unified space), bathroom and WC. The apartment corresponds to and is allocated a share of 9.050% of the undivided land and other common and shared spaces, parts, things and generally facilities of the complex. The defendant became owner of the apartment by virtue of the sale contract number ………. of notary public ………., which was legally registered in the Land Registry Office of Thessaloniki on ………. with registration number ………. as sale. Horizontal property was established on the defendant's apartment by virtue of the notarial deed number ………. of sale of apartment of notary public ………., which was registered in the Land Registry Office of Thessaloniki on ………. with protocol number ………. as sale and establishment of horizontal property.
The plaintiffs' apartment has in fact the right of exclusive use of one of the two (common) terraces and balconies, located in continuation of the rooms, of the above building and specifically the right one for one facing the building from ………. street, terrace, with an area of ………. sq.m., which consists of a unified space and the descent staircase, and balcony. The defendant's apartment has in fact the right of exclusive use of the other (common) terrace and balcony, located in continuation of the terrace, of the above building, the left one for one facing the building from ………. street, with an area of ………. sq.m., which consists of a unified space and the descent staircase, and balcony. These apartments have the right of exclusive use of the terraces and balconies in fact, given that on the one hand access to them is exclusively through internal staircases from the apartments, on the other hand there is no apartment building regulation registered in the Land Registry Office of Thessaloniki. These terraces and balconies are located in the rear part of the building, i.e. they do not have a facade on ………. street, but on the uncovered space of the building.
In 2021, the defendant installed on the common balcony located above her apartment a vertical wooden lattice construction - fence, with dense synthetic foliage, 2.40 meters high and 1 meter long. This construction was placed on the inner side of the built parapet of the balcony, 1 meter high, on the eastern side of the balcony, left for one viewing the building from its uncovered space. This wooden construction was not provided for in the building plans and was made for the benefit of the plaintiff's property. Its installation did not affect external walls of the disputed building and cannot reduce the static adequacy of the building, nor does it have any impact on the structural elements of the building, as its load (weight) is insignificant, in relation to the bearing capacity of the building, which has been equipped, according to the teachings of common experience and logic, to bear multiple loads. As shown in the submitted photographs, the construction does not offend the aesthetic and architectural appearance of the building, as it is located in the rear part of the building, on its uncovered space, is within the outline of the building and not beyond the architectural construction and was made in a manner appropriate to the aesthetic and architectural construction of the appearance of the whole building. It does not create independent spaces, as the balcony remains an uncovered space and not an enclosed one. Its size is small, given that it protrudes from the built parapet only by 1.40 meters, i.e. by 1.40 sq.m., so as not to reduce even minimally the brightness and ventilation of the plaintiffs' apartment, as well as their view towards the sea and towards the city of Thessaloniki. Finally, it does not impair in any way the use of the other apartments by their owners, including the plaintiffs.
As a consequence of the above, the lawsuit must be dismissed as substantially unfounded. Finally, the plaintiffs must be ordered, due to their defeat, to pay the defendant's legal costs, based on her relevant request (Article 179 of the Code of Civil Procedure), as specifically defined in the operative part.
FOR THESE REASONS - THE COURT
JUDGES in the presence of the parties.
DISMISSES the lawsuit.
ORDERS the plaintiffs to pay the defendant's legal costs, which it sets at the amount of five hundred (500) euros.