Indeed, it cannot be argued that the activity in question in itself violates theart. 1122 cc (pursuant to which in the real estate unit owned by him or in the parts normally intended for common use, which have been assigned exclusive property or intended for individual use, the condominium owner cannot carry out works that cause damage to the common parts or cause damage to the stability, safety or architectural decorum of the building), or articles 1102 and 1120 ccon the subject of equal use of common thingsstability, safety and architectural decoration of the building.
B&B, the limitations of the condominium regulations
The bed and breakfast activity in a condominium may be prohibited if so provided by one specific clause of the condominium regulation of a contractual nature (imposed by the builder and accepted by the entire condominium community or voted unanimously by the condominium assembly) which contains a ban on opening a bed and breakfast in a condominium.
This limitation, however, is to be ascribed to the genre of atypical mutual servitudesis opposable to the person who, over time, purchases the real estate unit, only if expressly mentioned in the purchase deed or, in the absence of a specific explicit reference, if the specific regulatory clause that provides for it is transcribed, as the generic transcription of the contractual regulation in which it is inserted is not sufficient (Trib. Pordenone 5 August 2022, n. 442).
If then a clause in the regulation prohibits those activities in homes that may disturb the tranquility of condominiums it is not “automatically” possible to request the closure of a bed and breakfast or the cessation of the guest house business. In fact, it is not certain that the noise produced by one of the condominium residents who resides in the building is less than that of one of the customers of the accommodation business. To support the violation of regulatory rules it is then necessary to provide elements from which to deduce the actual and concrete endangerment of the tranquility and safety of condominiums within the common areas due to the guest house and bed and breakfast business.
B&B and intense use of common areas: can the costs of the condominium owner who opened the business be increased?
Another aspect on which it is necessary to focus attention concerns theuse of common services and the sharing of condominium expenses. It is clear that carrying out the bed and breakfast activity can entail a more intense use of common parts and servicessuch as the stairs, the courtyard, the elevator or the concierge service.
Consequentially it is possible that the remaining part of the condominium owners will demand an increase in costs paid by the condominium owner who opened the said business.
In this regard, the case examined by the Court of Rome deserves to be highlighted (sentence no. 1271 of 24 January 2024). In the apartment of a condominium owner (four double bedrooms for 8 beds) thehospitality business providing hospitality services (so-called “bed and breakfast”). The property was frequented by many and always different userswith a more intense use of the common areas and the lift, certainly greater than the owners of other real estate units used as homes. This increased use entailed dirt on the stairs and in the entrance hall, repeated blockages of the lift, with a consequent sharp increase in maintenance interventions and related costs.
The block assembly, taking into account the situation, in derogation of the distribution criterion referred to in 1123 of the Civil Code, resolved to increase the condominium fee to be paid by the owner of the bed and breakfast by 30%.. The latter challenged the resolution, requesting that the Court declare the illegitimacy of the decision, thus ordering its annulment and adopting all consequential measures. The Court ruled in favor of the condominium agreed. The judge noted that a clause of the condominium regulation of a contractual nature established the following: “if the apartments are intended for a permitted use but different from that of residence, and as a result of this change the condominium owner or his successors in title intensify the use of the elevator stairwell, can with the majority provided for by the art. 1136 cc, second paragraph, impose an increase in the contribution to management and maintenance costs due pursuant to this regulation, for such common parts and services”.
As highlighted by the judge himself, the said regulation was validly enforceable against the owner of the real estate unit, despite the fact that its purchase occurred subsequent to its approval, because it was strictly transcribed in the real estate registers. The resolution, therefore, was valid. In the absence of this clause, however, the assembly cannot derogate from the criteria for allocating expenses established by law except through a totalitarian resolution. (1000/1000).
