The story
The story revolves around a dispute linked to the damage by infiltrations that affected the ceiling of the apartment of a condominium. The latter turned to the Court pointing out that the infiltrative phenomena derived by the property unit above, partially used as an apartment and partially as a terrace at the level.
The actress highlighted that the infiltration problems had initially manifested themselves in 2018, evolving with alternations of expanding and reductions over time, up to a relevant aggravation in 2020. According to the condominium – which had informed the inhabitant of the above real estate unit, without obtaining a solution – the cause of the infiltrations was linked to the terrace at the level that served as a roof for the units under the underlying units. The actress sued the condominium and the condominium of the above plan to obtain the payment of € 7,082.20, as compensation for damages and the removal of the causes of infiltrations.
The responsibility for the damage was attributed to the defendants on the basis of art. 2051 cc, considering that the terrace at the level was an integral part of the properties above. The condominium claimed not to know the causes of infiltrations. The inhabitant of the unit above has objected to the lack of passive legitimacy, declaring that he is mere usufructuary of the property and not to exercise any power over it, being resident elsewhere. Subsequently the actress asked to call into question the naked owner of the propertyrenouncing the action against the condominium.
The outcome of the CTU
The CTU has ascertained that a part of the home of the damaged is covered by the terrace at the level. The expert detected longitudinal injuries in the beams, caused by “concrete carbonation”.
However, as the CTU itself detected, following the renovation of the impermeabilization, These infiltrations have been eliminated. It also showed that the detachment of the painting of the walls occurred in the salon and veranda of the actress’s apartment. This damage has been attributed to “microinfiltrations” or the condensation of the water adduction pipes of the external sink located on the terrace.
CTU specified that this problem has not yet been solved.
The decision
The Court stressed that if the solar pavement or the terrace at the level are not in common use to all condominiums, the responsibility for the damage from infiltrations in the apartments below falls is On the owner or exclusive user of the pavementas custodian of the asset pursuant to art. 2051 cc, is on the condominiumby virtue of the obligations provided for the conservation of the common parts.
As the judge observed, the principle above expressed must be balanced with another principle relating to the identification of the custodian of the property object of usufruct. In this case, as the Neapolitan judge points out, The figure of the custodian coincides with that of the usufructuarybecause the latter, unlike the naked owner, has full possession of the thing (articles 982 and 1004 cc, paragraph 1), therefore holding the role of custodian with connected maintenance and restoration charges of the asset (Cass., Section II, 24/06/2022, n. 20429). The damage deriving from the terrace at the level are borne by the usufructuary to the extent of a third, while the two thirds are borne by the condominiums whose real estate units are covered. The damage caused by the water adduction pipe are attributable only to the usufructuary, since it is the system located at the exclusive service of the apartment used.
