What is the residual role of civil liability in relations between community members?

January 27 , 2023 // Specialty : Liability of a condominium

Published in Ambito Jurídico

A citizen requested to declare her counterpart civilly responsible for the extra-contractual liability regime for unilaterally occupying several assets without the consent of another community member. Consequently, she claimed that the defendant be ordered to pay her 50% of all the fruits that she has produced or could have produced.

The second instance reversed the decision of the first instance official and, instead, denied the principal and subsidiary claims of the lawsuit. Therefore, the plaintiff filed an appeal.

The Civil Chamber of the Supreme Court of Justice stated that the rules to decide how common property should be used mitigate the risk of harmful interactions between co-owners, at least in relation to the aforementioned privilege of use. However, this eventuality cannot be classified as harmful, since the non-shared use can be a legitimate manifestation of the real right that the condominium owner has, assessed by the abstention of intervention, concerted or self-imposed, of his peers. And although the person deprived of the use could request that it be shared, or that the co-ownership change its destination, this unilateral will is not enough for the behavior of the person who is using the common thing to be considered harmful.

In conclusion, by the mere fact of using co-ownership alone, it is not feasible to impose any compensatory or compensatory debt, since no co-owner is responsible for the consequences that the legitimate exercise of the advantages conferred by ownership could bring to his peers. of your fee. On the other hand, when the non-shared use is abusive, and constitutes a true affront to the rules of the community, it will be appropriate to impose the duty to assume the damages caused to the owners unfairly deprived of use (M. P. Luis Alonso Rico Puerta).