If a few years ago I dealt in this blog with the consequences that the superb, splendid development of a tree, planted in the garden area of an owner in a building under the horizontal property regime, had on the lights and views of the owners of the upper houses (HERE),, the question that now arises refers to an alteration in common elements, that it could be considered inconsequential and that it would not violate the prohibition of article 7.1 LPH, and even justified, to safeguard one's own privacy.
The problem arises in an urbanization located in a wild area by the sea, made up of single-family homes separated by low walls, with a light and open aesthetic in harmony with its location on the island of Menorca, when the owner of one of them decides to install on the delimiting wall between both properties —which is considered a common element—, without the authorization of the community or that of the owner to whom such alteration could be harmed, a metal fence covered with heather, which protruded above the original wall, in order to prevent the neighbor's views on the plot and safeguard his right to peaceful enjoyment of his property and family privacy.
The problem is that the peaceful enjoyment of one's own property affected were not only those of the owner who carried out the installation without authorization. The collision of rights that occurs is multiple, because no one is ultimately alien to the consideration given to said alteration. The issue affects the right to views of an owner, who acquired it in an urbanization with certain characteristics among which, we can undoubtedly affirm, were the sea views; also to the right of the other owner to preserve his own privacy on his property, restricting the views that his adjoining neighbor had over it; and also the right of the community of owners not to produce alterations in common elements that affect the aesthetics of the complex, and that of other owners within the community, who may end up being equally affected, whatever the way by which this installation ends up being authorized.
When weighing up the rights at stake, several considerations must be taken into account.
On the one hand, although it is true that the views are not absolute property rights between independent properties, in which the express constitution of an easement is required to limit the content of the domain of the servient property, in the case of properties in horizontal property that right and respective limitation results reciprocally without any other title than that resulting from the design of the building as a whole, and as a manifestation that each co-owner has to the peaceful enjoyment of his property, so that any constructive action that involves an alteration of that design, limiting the views, supposes a prejudice to the right that assists the affected owner as the owner of the property in that specific place. In this sense, the SAP Valencia, section 6, no. 397/2006, of 20 June, is expressed.
On the other hand, Article 7 LPH is quite clear in stating that "The owner of each flat or premises may modify the architectural elements, installations or services of the same when it does not undermine or alter the safety of the building, its general structure, its configuration or external condition, or prejudice the rights of another owner, and must give an account of such works beforehand to the person representing the community", then stating that "In the rest of the property you may not make any alteration and if you notice the need for urgent repairs you must notify the administrator without delay".
But not all alterations are the same; a structural element (pillar, beam, slab, etc.) is not the same as exterior elements (slats, balconies, windows, etc.) or others; whether it involves work or not, whether it is fixed or mobile, folding or removable, or whether it is more or less visible. And the question is whether, in the face of a collision of rights, a simple structure such as a metal fence covered with heather really entails an alteration that would fall within the scope of the prohibition of article 7 LPH, or, on the contrary, can be considered a "minimum constructive solution" not included in the scope of the prohibition, and essential to prevent the view of others on one's own property and, therefore, to guarantee the peaceful enjoyment of one's own private plot, safeguarding the right to privacy.
The judgment of first instance dismissed the claim filed by the owner affected by the obstruction of the views he had enjoyed until then, pointing out that the fence was placed in the private part of the defendant's plot, not on the dividing wall of both properties, and that it did not exceed "what can be considered a minimum constructive solution, essential and non-aggressive aimed at preventing the view of others on one's own property and therefore aimed at making appropriate use of the private plot, safeguarding the right to family privacy".
The judgment of second instance, on the other hand, upholding the appeal filed by the applicant, revoked the judgment of first instance, considering that the installation that was the subject of the proceedings affected a common element and that, therefore, its modification required the consent of the community of owners, which had been obtained by the defendant and did not exist, stating that "the installation of the reed and its structure in the separation wall contravenes the applicable regulations, the observance of which cannot be dispensed with by the assessment that it is a minimum work to preserve privacy when it affects the right of the plaintiff owner by limiting its exercise".
And the latter has been the solution confirmed in cassation by the recent STS, 1st Chamber, no. 502/2025, of 27 March [ECLI:ES:TS:2025:354], considers the prohibition of article 7.1 LPH to be applicable, since it is not a disputed fact that the installation of the fence affected a common element, rejects the applicability to the case of the case-law of the Court itself, in which the appellant tried to substantiate the admissibility of the alteration, pointing out that "the jurisprudential doctrine that considers "as inconsequential works that do not affect the common elements those enclosures that are not harmful to the other owners nor undermine or alter the safety of the building or its configuration towards the outside is not applicable to the case" (for all, judgments 537/2010, of 30 September, and 1023/2007, of 10 October), since in this case the separating wall, which is a common element, has been used to support an additional structure that modifies its appearance and functionality. The placement of the heather fence alters the exterior configuration by considerably increasing the visual height of the wall and modifying the original aesthetics of the complex, which was lighter and more open, in harmony with the location of the community and the houses that make it up located on the island of Menorca and, as can be seen in the photographs provided, in a wild area and very close to the sea", and "It also negatively affects the rights of the applicant, since it reduces the views of the sea that she had before its placement, limiting the use and enjoyment of her property, as evidenced, also, by the mere contemplation of these photographs".
The solution given by the High Court is
clear, and attends to the Law, to rights, and also to common sense; and
although it is worth thinking about what would have happened if, instead of
placing the fence on the wall or attached to it or affecting the Community wall
in any way – since the judgment of first instance states that it is installed
on private land – it had been installed at a certain distance, achieving the
same result for one, and affecting in the same way the right to views of the
other, It is possible to affirm that the
final result would not have been different, since this installation, although
on private land, would continue to alter "the configuration or external
state" of the same light and open complex in which everything was
acquired.
