When making any modification in a house, it is quite common to find ourselves with the doubt about who owns a certain wall that borders the adjoining property.
That is why it is important to learn to find out if a wall is dividing, so that you can know all the legal aspects that indicate what can and cannot be done in it.
In this post we are going to analyze this aspect based on Spanish legislation, so that you know reliably if a wall is party wall or not.
What is a party wall
First of all it is very important that we start by understanding what a party wall is and its main characteristics.
When we talk about dividing wall, we refer to a wall that acts as a medianería, being in this way a separation between two properties, which can be plots, houses or of any other nature.
It is important to note that in this way, what it establishes is a limit with respect to the adjoining property, either a vertical or horizontal limit, thus delimiting each property physically.
It must also be clear that a party wall does not have to be a brick, stone, masonry or similar wall, but also contemplates other different forms such as a fence or even living hedges, so that it basically refers to the element that creates a physical separation between both properties.
How to identify if a party wall
But not always two walls that separate properties are considered as a wall of medianería, but to be considered a wall as a dividing wall, it must comply with some basic precepts established in article 572 of the Civil Code that are:
- It is a wall that separates two different properties in adjoining buildings.
- Be they fences, hedgerows or fences that divide rustic properties.
- In the case of dividing walls of gardens or corrals located in the countryside or in a village.
If it complies with any of these principles, the wall may be considered as a party wall. But it is important to keep in mind that it will not necessarily be an element owned by both neighbors, but there are different aspects to take into account that are what will help determine the ownership of said division.
Who owns the dividing wall
As we can see, a dividing wall separates two properties from each other, but to whom exactly does it belong?
First of all it is important to find out if there is any title such as a public deed or element that indicates that this wall belongs to only one of the owners.
It should be noted that in these cases it is important to bear in mind that, depending on the situation, a party wall can be considered as a co-ownership. That is, it belongs to both owners whose properties are separated by it, can be considered an easement or can be a commonwealth.
However, in most cases, the Civil Code determines that from the legal perspective, the party wall will belong to both owners, each of them owning only one part, which will be the one that corresponds to their side of the property and that, therefore, the opposite cannot be altered without an express authorization from its owner.
However, there are different elements of the Civil Code that are reflected in its articles 573 and 574, which will be those that can determine in particular cases the belonging of the party wall to only one of the owners, or rather, that there is no medianería but privacy, which are the following:
- The presence of windows or open gaps in the dividing walls. In this case, it will be considered that there is privacy in favor of the owner to whom these holes or windows belong.
- In the event that the wall is straight on one side and lead, while on the other side, it presents relex or retals in its lower part that suppose a difference in thickness due to the existence of two overlapping walls.
- If the wall has been built on the land of one of the farms, instead of being in the middle between one and the other, occupying part of both. Obviously, on this occasion, it will be considered that the owner will be the one on whose property the wall is built.
- When it suffers the loads of strokes, which are horizontal beams that are part of the supporting structure of the building, as well as floors and trusses of only one of the properties. In this case, the wall will be considered the property of the one to which the beams and structural elements correspond.
- In case the wall is located between patios, gardens and inheritances, while it is built so that the wall pours into one of the properties, assuming that the owner will be the one where the waters are discharged. If it happens that the spill into both properties, it will not be considered as a reason to attribute the property to only one of the neighbors.
- If the masonry wall incorporates passageways, that from distance to distance come out of the surface only on one side, so that priority will be given to the owner of the land that is in the place where these stones are presented, since this would demonstrate that there is an indication of execution of building work by the placement of scaffolding or others.
- In the event that the estates adjacent to others that have been defined by fences or hedgerows, are closed.
It is very important to bear in mind that, in order for the ownership of the party wall to be attributed to one of the owners, it is very important that at least one of the precepts indicated in articles 573 and 574 of the Civil Code is complied with.
In the rest of the circumstances, as long as the dividing element has the legal particularities indicated in article 572 of the Civil Code that allows its consideration as a dividing wall, it will be assumed that both owners have the right to said wall and, therefore, the works that affect the opposite side of it, must be carried out in consensus between them.