Fees charged by neighbors’ associations from non associated owners: a possible solution given by the law of restitution

Abstract

The article sustains that the law of restitution is more capable of granting a suitable solution to the cases of lawsuits filed by neighbors’ associations against non-associated owners that refuse to pay fees in exchange for services of maintenance, security etc. The theory that divides the unjust enrichment into different categories is adopted to justify that the hypothetical unjust enrichment alleged by the associations against the reluctant owners is a case of imposed enrichment, whose requisites are stricter in comparison to other categories of unjust enrichment, so that in most situations the restitution is not due. It is also argued that the quaestio cannot be solved exclusively in the constitutional level, as it is necessary to apply the law of restitution enforced by ordinary legislation.