The problem of legal classification of a balcony in the jurisprudence of administrative and common courts of law: A comparative legal analysis.

Abstract

This article takes up the subject of definitional problems relating to the concept of a balcony, loggia (recessed balcony) and terrace, as the current law still lacks the legal definitions thereof. Thus, firstly, so far published contributions devoted to the problem of the legal status of a balcony (terrace, loggia) have been outlined, both from a theoretical as well as practical angle, which involves matters such as their architectural classification. The approaches taken so far in legal scholars’ writings have been presented and confronted with the practical approach of the jurisprudence and the needs of the real property market. In addition, the review of the case law has revealed a considerable differentiation of approaches as to the normative and spatial classification of the balcony, i.e., either considering it to be part of a private apartment or common areas of a property. As a result, de lege ferenda amendments to the existing legal solutions have been proposed. The legal status of a balcony is discussed by reference to the understanding of common areas of a property and private apartment. Due to the sheer volume and number of references in the case law of common courts of law and administrative courts, these deliberations have been divided for the purpose of their publication into two elemental, mutually complementary parts: the first part (contained in this paper) is devoted to the definitional and linguistic aspects of the concept of “balcony”, while the second part focuses on the legislative changes proposed by us, including those related to our attempt to clarify the concept of “common property” against the background of the law on the ownership of property.