Private or common terrace for exclusive use: how to tell them apart from the title deed and bylaws

The essential difference: ownership and use are not the same

When an owner speaks of “my terrace”, they may be referring to two different legal situations. The first is that the terrace is **private**, that is, part of their property and their individual ownership right. The second is that the terrace is a **common element** or part of the building’s common areas, but with **exclusive use** granted to a specific dwelling. That difference makes a big change to what can be done in terms of use, building work and the sharing of costs.

The Horizontal Property Act distinguishes between the individual and exclusive right over the private space and joint ownership of the common elements. In Article 3, it states that each flat or commercial unit is entitled to “**the individual and exclusive right of ownership over a sufficiently defined space**” and also “**co-ownership, with the other owners of flats or commercial units, of the remaining elements, appurtenances and common services**”[^1]. That idea is the basis for understanding why a terrace may seem to belong to a dwelling, yet not be fully private.

> “Each flat or commercial unit shall be entitled to: a) The individual and exclusive right of ownership over a sufficiently defined space… b) Co-ownership… of the remaining elements, appurtenances and common services.”

Where to look first: title deed, master title deed and bylaws

To distinguish a private terrace from a common one for exclusive use, the correct order of checks is always documentary. You should not rely solely on what a neighbour says, what has been tolerated for years or the physical appearance of the terrace.

### 1. Check the deed and the master title deed

Article 5 of the Horizontal Property Act states that the **master title deed** must describe the property and each flat or unit, as well as its appurtenances, and may include rules on use, purpose, costs and management[^1]. Therefore, if the terrace is private or an appurtenance, that should appear there clearly.

If the description of your dwelling states that the terrace is an appurtenance, an inseparable appurtenance or space integrated into the property, the documentary basis is different from one in which the terrace is described as a common element or simply does not appear as part of the private property.

### 2. Check the community bylaws

The bylaws may specify the use of common elements and set specific rules. The same Article 5 allows the title deed to include provisions on use, purpose, costs, management and repairs, and for that private regulation not to prejudice third parties if it is not registered[^1]. For that reason, a terrace may be common, but be allocated to a dwelling for exclusive use by the bylaws or by the title deed.

### 3. Do not confuse “exclusive use” with “exclusive ownership”

The expression “exclusive use” does not automatically mean that the terrace is yours in ownership. It may mean that you are the only person authorised to use it, but that ownership remains common. This is especially important when you intend to enclose the terrace, install fixed features or assume that structural repairs are the responsibility of the occupying owner.

How to read the documents without making mistakes

A useful reading of the documentation requires checking several clues at once. One isolated phrase is not enough.

### 1. Look for the literal description

If the terrace appears as part of the surface area or as an appurtenance in the description of the property, there are stronger indications of private ownership. If, instead, it is mentioned in the general description of the building, in common areas or in the regime governing common elements, the prudent assumption is that it is not a private terrace even if only you use it.

### 2. Distinguish between access, enjoyment and ownership

It may happen that a terrace is on the roof, in a penthouse or on an intermediate floor and that access is only from one dwelling. That alone does not make it private. The fact that only you have access or exclusive enjoyment does not automatically alter ownership.

### 3. Check whether there are clauses on maintenance and works

If the documentation assigns the terrace to the exclusive use of a dwelling, check who is responsible for keeping it in repair and what works require authorisation. Article 7 of the Horizontal Property Act prohibits actions that harm other owners and requires respect for the safety, structure and configuration of the building[^2]. In addition, Article 17 regulates cases in which certain works or alterations to the building require majorities or even unanimity, depending on the case[^2].

What you should do before acting on a terrace

If you are thinking of enclosing, waterproofing, replacing the flooring or installing an enclosure, do not assume you can act as if it were a fully private terrace.

1. **Read the master title deed and the bylaws first**.

2. **Identify whether the terrace is private or a common area for exclusive use**.

3. **Check whether the work affects common elements, the façade, the roof or the building’s appearance**.

4. **Obtain the community resolution required if the intervention calls for it**.

5. **Keep any authorisation in writing, if there is one, and the work documentation**.

This order avoids common disputes: starting the work and asking for permission afterwards; assuming that exclusive use authorises any enclosure; or believing that the community must bear costs that may not correspond to it under the property documentation.

Common mistakes when interpreting a terrace

The most common errors tend to recur in owners’ communities:

- Confusing continued use with ownership.

- Thinking that “I have always used it” amounts to sufficient title.

- Failing to check old bylaws or later amendments.

- Assuming that a terrace on a penthouse is automatically private.

- Starting works without checking whether they affect common elements.

- Considering that maintenance is always the responsibility of the user, even if ownership is common.

If in doubt, the correct criterion is not day-to-day use but the documentary content. Practice is only a clue, never definitive proof on its own.

What to do if the documents are not clear

There are properties whose documentation is not drafted with the desired precision. In such cases, the general guidance is:

1. Review the deed of horizontal division and any amendments to it.

2. Check whether there are community resolutions that have regulated the use.

3. See whether the Land Registry records the terrace as an appurtenance or a common element.

4. Consider whether the community has expressly consented to any allocation of use.

If, after reviewing that documentation, the doubt remains, it is worth obtaining a specific documentary and register-based assessment. At UBICASA you can request an online indicative property valuation, which includes a range and PDF report, with an optional visit if the case requires it. For a more specific enquiry, you can also use our contact.

The key idea to avoid getting it wrong

The practical distinction is straightforward: **if the terrace is private, it forms part of your property; if it is a common area for exclusive use, you use it exclusively but you are not necessarily its owner**. That is why the correct answer is not found by looking only at the roof terrace or the access point, but by reading the master title deed, the bylaws and, if necessary, the register documentation.

In a community, use may be well established and yet still not change ownership. Before enclosing, renovating or assuming costs, it is worth checking exactly what right you have over that terrace and what limits the community imposes.

[^1]: Law 49/1960, of 21 July, on horizontal property — Articles 3 and 5, in the excerpt provided.

[^2]: Law 49/1960, of 21 July, on horizontal property — Articles 7 and 17, in the excerpt provided.