The Article 396 of the Civil Code indicates that the common elements of a community are:
“…all those necessary for its proper use and enjoyment, such as the ground, flight, foundations and roofs; structural elements and among them the pillars, beams, slabs and load-bearing walls; the facades, with the exterior cladding of terraces, balconies and windows, including their image or configuration, the closing elements that make them up and their exterior cladding; the portal, stairs, gateways, corridors, steps, walls, pits, patios, wells and enclosures for elevators, deposits, meters, telephony or other common services or installations, even those that are for private use; elevators and installations, conduits and pipelines for drainage and for the supply of water, gas or electricity, even those for the use of solar energy; those for hot sanitary water, heating, air conditioning, ventilation or smoke evacuation; those for fire detection and prevention; those for electronic doorman and other building security systems, as well as those for collective antennas and other installations for audiovisual or telecommunications services, all of them up to the entrance to the private space; easements and any other material or legal elements that by their nature or destination are indivisible.”
According to Article 5 of the LPH (Horizontal Property Law), in the constitutive title of the community it must be determined the characteristics of the building or urban complex on which the community is constituted, indicating its private and common elements. It should be understood that in case of doubt they should be considered as common.
These common elements of the community have the following characteristics:
- They are accessories to private elements. Their existence is based on providing private elements with a complementary service to them. Sometimes they are absolutely necessary for their use and enjoyment. For example, a house could exist if the building did not have an elevator. However, this is an extremely important accessory service for housing. However, a house could not exist if it does not have a foundation, pillars, roof etc.
- They are inseparable from private elements (except those that are common by destination which would be separable). Would it be feasible to enjoy a penthouse without a foundation or structure to support it? Can this penthouse be separated from the roof of the building that serves as its ceiling?
- They are indivisible. No co-owner can legally request the division of the common element (It is not possible for an owner to legally request that the community garden be divided into portions for each owner) or that the pillars of the building be divided.
Starting from this base, it is reiterated that those common elements that are precisely qualified as “common by destination” or also called “procommunal” are those that there would be no need to keep as common. It is up to the community to decide at any time whether it wants to continue giving them this destination. For example, the community could sell its paddle tennis courts but not its pipes or foundations.