Division common thing and horizontal property
You can ordered the constitution of a horizontal property as a result of an action of division of common thing?
To the Supreme Court, it can be ordered the granting of a Deed of Division Horizontal, as a result of estimating a demand division common thing, provided that all other applicable regulations are respected, He is according to the criteria expressed in its judgment of 3 March 2016.
In 1963, D. Vincent and Dña. Palmira construyeron un edificio de cinco plantas, with two shops and 10 homes. This well acquired by inheritance D. Balbino who died intestate and therefore, It was inherited under a Community of goods for his wife and children.
Two of the children, presented demand for ordinary trial on Action division of common thing against the wife and the third daughter. Solicitaron la condominium division, adjudging the parties in accordance with your proposal and compensating differences in allocations by cash payments.
He also asked that the defendants be ordered to Horizontal Division grant writing and register in the Registry of Property.
The Court of First Instance number 1 Oviedo gave judgment estimating demand, declaring the division of condominium in accordance with the proposal of the plaintiffs and condemning the defendants to grant writing horizontal division.
The defendant filed appeal before the Provincial Court, which dismissed.
So they have resources procedural infringements and a cassation to the Supreme Court.
For the Board, existence la escritura no imprescindible para la existencia de la propiedad horizontal, but (citing the STS de 1 February 2007):
"The horizontal property automatically and necessarily arise whenever the plurality of owners give, either by acquisition modes established in the civil legislation of any of the floors or premises Property (STS 28 June 1986), either by awarding den flats or local division of a building between commoners (art. 401 second paragraph of the Civil Code) and that whatever has been previously formalized or not the master deed, which document constitutes the necessary formal legal investiture to that factual budget ".
Although irregularities may exist as to the adequacy of the current reality registration, these obstacles are considered salvageable, for example, considering as exclusive use common elements which can not be individualized.
Moreover, the action of division of the common thing, It not considered adequate procedural means for compensating certain nutritional needs of the widow.
Last, certain elements had been used by the community, incluso invirtiendo en reformas del local. The Board considers that There estoppel and therefore, the award should be adjusted to that use batch, also it poses no serious imbalance in the same.
Ultimately, confirms that with the action of division of the common thing can be ordered sentence notarize the horizontal division, adapting to current regulations and partially upheld the appeal by changing a lot in applying the theory of estoppel.