Annexes and ancillary rooms (partial ownership or accessory residential property)

The term anejo, meaning annex or ancillary room, is used in Articles 3, 5 and 10 of the LPH and Article 396 of the Código Civil. However, the Ley de Propiedad Horizontal uses this term in a different context than Article 396 of the Código Civil.

[pullquote]Even if the term ‘anejo’ conveys that certain elements are dependent on a specific item of separate property, this does not necessarily mean that typical ‘appendages’ such as parking spaces and storage rooms are always dependent on an item of separate property. Rather, these may also have been configured as separate and independent special property. [/pullquote]

In Article 396 of the Civil Code, anejo (appendix) describes the relationship of co-ownership of the common elements in relation to the special property. Among other things, it stipulates that co-ownership (of the common elements) is transferred together with the separate property and may neither be separated from it nor be subject to division. Anyone who acquires the separate property therefore also acquires co-ownership of the common elements. In this sense, co-ownership of the common elements therefore constitutes an anejo (appendix) to the separate property. In a sense, it is not independent, but initially indivisible from the respective separate property. Of course, a change can also be brought about here by means of a resolution. However, it is likely to be difficult to achieve a uniform position among all owners in such matters. Often, changing the classification as an ancillary building or annex is the first step towards being able to sell these elements separately. However, this also means that the number of owners may increase and outsiders may suddenly be included in the circle of owners without having any connection to the property other than this one element. This raises questions such as the following: Can the purchaser of a single parking space use communal facilities such as the swimming pool?

In the Ley de Propiedad Horizontal, anejo (annex) therefore refers to a sufficiently demarcated area that is accessible for independent use, which has been expressly designated in the declaration of division and which may be located outside the demarcated area of the actual (main) separate property. These are therefore dependent elements that are legally linked to an element of separate ownership. Article 5 LPH cites parking spaces, attic rooms and cellars as examples of this category. Even if the elements just described are often configured as annexes, it is equally possible for them to constitute independent separate ownership. If they have been assigned their own quota in the declaration of division, they are therefore independent separate property. Otherwise, they merely belong to such property as an annex. For this reason, the annex is also separate property, but it is dependent and linked to the actual, essential separate property element. In German residential property law, there is the concept of partial ownership, and in Austrian law, there is the concept of accessory residential property, which are quite similar to the concept described here.