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The case. Can the owner of an apartment on the top floor open a terrace, modifying the structure of the roof above?

The dispute examined by the Italian Supreme Court concerned an action for reinstatement brought by the owners of the ground floor of a building against the company A. Ltd., which was the owner of a terrace that had allegedly been transformed into lofts.

The decision. Supreme Court judgment no. 14107/12, deals with the compatibility of such changes with the provision set forth in article 1102 of the Italian Civil Code, which provides that Each participant can use the commonly owned asset, provided that such use does not alter the destination thereof and does not prevent the other participants from also making use thereof according to the law. To this end, the member of the condominium in question may make the necessary changes at his own expense for the best enjoyment of the commonly-owned asset.

The company owning the top floor claimed that the changes did not give rise to any harmful consequence for the other residents.

The Supreme Court Judges started their analysis from Supreme Court Judgments Nos. 3199/83, 4466/97 and 1737/05, according to which the transformation of the terrace roof covering a condominium building by the owner of the adjacent floor and the latter’s annexation of such condominium terrace – which results in the latter only having direct access thereto – is illegal. Such activities – which cannot be qualified as an exercise of the right to cover the terrace attributed to the owner of top floor of the condominium building – is, on the one hand, a unilateral alteration of the role played by the roof (which is to cover the building and protect the underlying structures) and is, on the other hand, a misappropriation of a commonly owned asset that violates the rights of ownership and the inherent right to use and enjoy the common parts of a condominium building that is attributed to all the members of a condominium (cfr. also 4579/81, 3369/91 and 8777/94).

Therefore, according to this approach, the removal of the roof of the transformed building by the owner of the top floor (who reserves it for his exclusive use) is unlawful because it prevents other members of the condominium from using it.

In the case at hand, however, the Supreme Court Judges considered legitimate – provided that the obligation of not affecting the architectural decorum of the building was observed – the opening of new windows or doors or the enlargement of existing ones in the common condominium wall by the member of the condominium, insofar as this did not affect the destination of such wall (cfr. Supreme Court Judgments nos. 4996/94, 20200/05, 13874/10).

The Supreme Court Judges continued by outlining how this right also applied to the roofs of buildings, thus ruling: … the member of the condominium who owns the floor below a jointly owned roof, can make openings for windows for the purpose of giving air and light to the former’s property provided that they are not incompatible with such roof’s natural destination and such works are conducted in a workmanlike manner, as well as not adversely affecting the roof’s function of covering the condominium building and not adversely affecting the rights of other residents thereon (cfr. also Supreme Court Judgments nos. 17099/06 and 1498/98).

The Supreme Court Judges inferred from the above that one can have doubts about a categorical prohibition of small openings in the condominium roof.

So what are the conditions under which a member of a condominium may carry out such works?

On this point, the Supreme Court Judges clarified that the parameters to be used are basically two: The changes should not significantly alter the size of the commonly owned asset and they must allow such asset to be used by other members of the condominium.

The Supreme Court had clarified in the past (cfr. judgment no. 8808) that the concept of equal use of the common thing referred to in article 1102 of the Civil Code (which, by virtue of the reference contained in art. 1139 of the Civil Code, is also applicable to condominium buildings) is not to be understood in the sense of the identical and simultaneous use thereof. The law gives to each co-owner the right to make the most intense use possible of the commonly owned asset, provided that this is compatible with the rights of other co-owners. Since the exercise of rights on commonly-owned assets requires the constant balancing of the needs and interests of all the owners of such commonly-owned asset, the change to such commonly-owned asset must be considered legitimate to the extent to which the other co-owners are not expected to use it since the right to use such asset is limited by the use made thereof by the other co-owners. Changes to a commonly owned asset may be impeded if it can be reasonably predicted that the other co-owners may want to increase their use thereof (cfr. Supreme Court Judgment no. n. 8808 dated May 30, 2003,).

Starting from these principles, it is obvious that article 1102 of the Italian Civil Code must be interpreted in as favorable manner as possible to the development of housing needs.

If the opening of roof windows is allowed, the same has to apply to the building of small terraces, which cover the condominium building in the same way as a roof does.

The Supreme Court Judges held, in fact, that, in such cases, the destination of the roof is not functionally altered if insulation is inserted into the floor… Therefore, the deletion of a small part of the roof cannot – provided that the function of coverage is safeguarded and a more intensive use by the condominium also takes place – be construed as alteration of the destination of the condominium building. Obviously, an assessment thereof must be made on a case by case basis according to the particular circumstances of the case, which can only be contested by the Supreme court in terms of the grounds upon which judgment was handed down.

La controversia oggetto di esame da parte della Cassazione concerne l’azione di rimessione in pristino promossa dai proprietari del piano terra di un edificio, sito in (OMISSIS), nei confronti della società A. srl, proprietaria di soffitte asseritamente trasformate in mansarde abitabili, con parziale abbattimento del tetto e innalzamento della parte residua di esso.


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