In the condominium, the starting point is simple: each participant can use the common property to gain personal advantage, as long as he does not alter its function and does not limit the equal rights of others. When a condominium owner uses the perimeter wall to improve the use of his real estate unit, already structurally connected to the common good, as presupposed by the art. 1117 cc, he is not imposing a real burden or exercising an easement. It is simply making use of its right of co-ownership, exploiting the common good within the limits of its destination and according to the physiological logic of the condominium.
The opening of the gap between different scales: why it is illegitimate
The use of the perimeter wall for needs within the apartment, for example to install an accessory element or obtain a functional advantage, falls within the scope of permitted use pursuant to art. 1117 cc and does not constitute an easement.
The situation is different when the condominium owner uses the common part to create a stable connection with an asset that does not belong to the same group of condominiums. In this case the work alters the destination of the common good and transfers the enjoyment of the thing to subjects unrelated to co-ownership: it is, to all intents and purposes, the imposition of an easement, which requires the unanimous consent of the condominiums.
The Court of Cassation clarified that the principle also applies in a particular situation: when the room you want to connect is not outside the building, but is located inside the same building, despite belonging to a different group of condominiums (different partial condominium). In other words, even if we are in the same building, the two staircases (A and B) are considered distinct common parts, each intended to serve only the group of apartments that access it. For this reason, a condominium owner on stairway B cannot open a gap in the wall to connect his apartment to the landing of stairway A: that wall belongs to the partial condominium of stairway A, and whoever lives in stairway B is extraneous to that co-ownership.
The opening of the gate is not a simple use of common property, but a burden imposed on an asset that serves a different group of condominiums. In fact, an easement is created in favor of a real estate unit that does not belong to the partial condominium on scale A, a burden that can only arise with the unanimous consent of the co-owners.
The opening of the passage, therefore, is not a more intense use of the common thing, but a functional change of the staircase A, transformed into a passage even for those who were not co-owners of it. The Court of Cassation therefore deemed the work illegitimate, because it constituted an unauthorized easement and detrimental to the destination of the common part (Cass. Civ., section VI, 22/11/2021, n. 35955).
Modification of a condominium window to install a walkway and reach the elevator of the other staircase
A recent decision by the Supreme Court of Cassation confirmed that the use of common property by the individual is legitimate only when it remains within the sphere of co-ownership and does not translate into an advantage for a “foreign” asset, be it outside the building or simply belonging to a different partial condominium. In the case examined, a condominium owner asked to modify a condominium window to install a walkway on the terrace of his property and use the lift installed, at the expense of some condominiums, in the other flight of stairs: an intervention which, if contained within the limits of the art. 1102 cc, can be admitted because it is aimed at the best enjoyment of one’s real estate unit and does not involve any transfer of the common good to third parties. The assembly had denied the condominium owner consent to modify the common window and build the walkway. The condominium owner challenged the resolution also requesting verification of the right to carry out the interventions.
The Court annulled the resolution due to lack of motivation, but did not decide on the further questions. On appeal, the appellant complained about the failure to rule both on the ownership of the terrace-garden and on his right to use the common property pursuant to art. 1102 cc The Court of Appeal declared the request for verification of ownership inadmissible, considering that it did not derive from an exception of the defendants, and considered the other requests absorbed as a consequence of the annulment of the resolution, maintaining that the judge cannot replace the assembly in evaluating the legitimacy of the intervention requested by the individual.
The Supreme Court has clarified that the judge must independently evaluate the individual’s request based on art. 1102 cc, without considering it absorbed by the challenge of the assembly resolution: the condominium owner has the right to have it ascertained whether the work falls within the permitted use of the common property (Cass. Civ., section II, 19/03/2026, n. 6624).
When the intervention remains within the sphere of one’s partial condominium, the art. applies. 1102 cc; when, however, it invades the sphere of another group of co-owners, an easement is created and unanimity is needed. In the case of the gap between scale A and scale B, the work was illegitimate because it transferred the enjoyment of scale A to a person unrelated to the relevant co-ownership; in the case of the walkway to reach the lift, however, the Court of Cassation recognizes that the intervention can be assessed as a legitimate use of the common property, as long as it does not alter the destination of the property or limit the use of the other participants (think of a walkway that permanently occupies a significant portion of the common perimeter wall or protrudes towards the stairwell, reducing the space for maneuver or obstructing the passage).
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