Questions in the possessions of the homeowners
Posted by Manuel Casal | Section Juris. procedural
II. - The appellant's second inadequacy of the procedure used, since, in his opinion, should have handled the dispute in accordance with the provisions of Article 9 of the Horizontal Property Act, as in any case the defendants have carried out an activity not permitted by the Statutes. However, what is discussed, and it can be decided in these proceedings is a matter of possessions that must be resolved in a proceeding to recover possession interdictal. For this reason, all that could be argued that the appellant was the plaintiff says the exercise interdict quod vi aut clam when it actually exercises is to regain possession, since the interdict quod vi aut clam has purpose is to undo a play seated on the ground (39,1,1-12 Digest), work that does not exist when it does is put a close to a terrace garden. However, in both cases is the same procedure used and the courts can apply the appropriate standards under the principle iura NOVITA Curia despite the name that designates the action exercised is not correct.
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IV. - As for the bottom line, remember that the procedure only allows interdictal initiate a debate on the possession of the terraces subject of litigation, being all the same strange question about the character of that community or private space. Given this limit, note that the actions contained sufficient elements to prove that the possession of the terrace was the Community since 1967 until he was stripped of a part of it returning visitors. So Mr. Josep Maria M. the confession in court acknowledges that when he purchased the house terrace was generally open (sheet 574 relative to 394) and recognizes Mrs.. Fermina A. (Folio 575 relative to 394). Mr. Edward F. co-owner has also closed part of the terrace generally supports this had always been open to any resident had access to all of it without restriction, and that despite claims that he had supported the repair costs of space, or tells which, even if they were all (folio 581 relative to 393). In the same vein, Ms.. Anna Maria SP occupying the cottage number five says that the terrace was in free circulation for residents and paid the expenses of the Community (folio 584 relative to 393) and it says Mrs. Mary RC (folio 588 relative to 393). Even the appellant himself acknowledges that allowed the free movement of the joint owners as an act of tolerance, but can not understand how tolerance to allow use and circulation to the terrace by any co-owner for 36 years, since in any case was limited, because it has proven that there was no restriction or temporary, given its duration, or innocuous, since it is clear that the passage of other people privacy to the owners of houses that have direct access to the terrace.
Moreover, it recognizes that it has closed a recurring part of the terrace mentioned, therefore preventing access to it from other co-owners, why do I need to understand that he has carried out an act that deprives the Community of possession enjoyed having it made clear opposition of the same, as is highlighted in the minutes of the Boards of the Community.
For this reason we believe that it gave all the requirements interdictal to estimate demand and, therefore, now comes the confirmation. "
Judgment of the SLA's civil High Court dated 30/3/07, speaker E. Amat, Aunt 230/06.
We injunctions
