Shared foundations that fail

The foundations of my terraced house are giving way and my neighbour wants nothing to do with it.

(*) A real query which, given how frequent and important it is, we reproduce as a very common query/answer, omitting its origin and leaving out any details that might reveal the person’s identity. “The  foundations of my terraced house, which I share with my neighbour, are defective; in fact my house is leaning and lots of cracks are appearing. The problem, moreover, is that my neighbour does not want to take legal action or pay a single euro towards the repair. Admittedly his house hides the lean better, and he has filled the cracks that have appeared with silicone and then painted over them. That could amount to unjust enrichment, since I will be the only one making the claim, but I would like him to bear the costs as well.” OUR ANSWER TO THE CLIENT  First of all, here is a summary of articles 9 and 10 of the Horizontal Property Act (LPH): 9-1. The obligations of each owner are:

1. c) To allow in their home or premises the repairs required for the upkeep of the building and to permit the essential easements needed to carry out works….

 10-1. The following actions shall be mandatory and shall not require the prior agreement of the owners’ meeting……:

1. The works needed for the proper maintenance of the building and of its communal services and installations, and to fulfil the duty to keep them in good repair….

As for all these necessary repairs, the co-owners are required to contribute to them. Having examined the deed of sale of your home, we have confirmed that there is indeed a horizontal property regime covering the properties. The foundations of the homes are among the communal areas, as provided by article 396 of the Civil Code and by clause five, section a) of the deed of your home itself. If your neighbour does not cooperate, you should file a lawsuit to obtain not only compensation but also a judicial declaration, by means of a judgment, of the condition of the foundations of the homes, including the threat this poses to the stability of the building, and of the liability of third parties (the developer or the architect) to repair it or pay compensation. When awarding you compensation, the judge will not order payment for “half” of the foundations but for all of them, which logically affect both you and your neighbour. What the judge will do is determine the value of all the affected foundations, not just your part, because we must not forget that the foundations are communal. Once that has happened, your neighbour would have to allow the easements needed for the repair. If the judge awarded only part of the amount, it would be solely because he considered that sum sufficient to put right all the damage; but he will not refuse to award compensation because part of the damaged foundations lies “under the house” of your neighbour and your neighbour has refused to sue. We are of course speculating about the judge’s decision, and the judge will have the final say when giving judgment; but what you certainly must do is make the claim, argue that the foundations are communal and obtain an adequate sum to repair them. Although the most reasonable course would undoubtedly be to reach an agreement with your neighbour, if that does not happen there are legal mechanisms to prevent unjust enrichment when it comes to paying for the repair