Condominium building abuses: notification of demolition order
The TAR Abruzzo, L’Aquila, section I, in the sentence of 26 April 2024, n. 197, stated that, in the case of building abuses, it must be recognized that the only subjects who could (where the contested abuse actually existed) be obliged to restore the state of the places are the owner or the person responsible for the abuse. From this it follows that, for abuses on areas of exclusive propertythe demolition order must be notified to the individual owner and, where identifiable, also to responsible for the abuse.
In the case of abuse on condominium property areas you will have to proceed with notification to all individual owners and, where identifiable, also to the responsible for the abuse. In neither case is it possible to notify the demolition order to the Condominium Administrator, who carries out exclusively functions pertaining to the administration of the common areas. The condominium as a management body without a legal personality distinct from that of the individual condominium owners, in the person of the Administrator, cannot be the recipient of any demolition order; this is because not even the common parts of the building are owned by the management body, but by the individual condominium owners.
It follows from this that even the measure aimed at targeting the abuse carried out on the common areas must be addressed exclusively towards the individual condominiumsas the only subjects capable of restoring the state of the places.
Access to the amnesty application presented by another neighboring condominium owner of the same real estate complex
According to the TAR Campania, Naples, section VI, sentence of 6 May 2024, n. 2974, it is legitimises the request for access to documents advanced by the neighbouring condominium owner and aimed at obtaining copy of the amnesty requests presented by another neighboring condominium owner of the same building complex. Well, from such position of neighboring owner and condominium derives from the appellant a qualified interest in knowing the requested documentsas already stated by jurisprudence(1).
Knowledge of the required documentation is, indeed, necessary to verify the legitimacy – from a building, urban planning and landscape perspective – of the works carried out in the neighboring property of the other condominium and it is evidently functional to the protection of another, different, legal situationrelating to the applicant’s property rights (art. 42 of the Constitution) and this also in reference to the rights pertaining to the common parts of the condominium, in order to be able to fully enjoy them without interference and undue burdens, especially when dealing with goods located in landscape protected area. And this is enough to deduce the existence of a personal interestcurrent and concrete, connected to the documents requested, and therefore constitutive of a position legitimizing access.
The right of access can, in fact, be exercised even independently of the pendency of a judgmentindeed, knowledge of the documents can be instrumental precisely in the evaluation of the opportunity and convenience of its establishment (as highlighted by Plenary Meeting no. 19 of 2020, “…defensive access does not necessarily presuppose the initiation or actual pendency of a trial. The provision in paragraph 7 of art. 24 cit., in contemplating the need both to “cure” and to “defend” a legally relevant interest, suggests the logical priority of knowledge of the elements needed to decide whether to initiate a trial and how to construct a defensive strategy for this purpose; with the consequence that defensive access to documents does not necessarily have to result in a contentious outcome in the strict sense. But whether the dispute between the parties is settled in a phase prior to the trial… or whether the conflict results in the initiation of the trial, the need for the parties to acquire knowledge of the facts relevant for the purpose of composing the disputed res already in the extrajudicial stage and in the pre-trial phase appears evident; whereas, in the event of failure to resolve the conflict, the administrative documents acquired with the defensive access tool may find entry into the process through their production in court by the party…”).
There instrumentality of the right of access to protect a legal situation protected by lawFurthermore, “it does not consist of a verification of the actual usefulness of the documents requested for the purposes of the case but rather of the possibility for the interested party to direct his defense choices in the way he deems most suitable for his interest”. The instrumental connection must therefore be understood in a broad sensein the sense that the requested documentation must be, generally, a useful means for the defense of the legally relevant interest.
Nor can the request formulated by the interested party be considered generic. Indeed, anyone who exercises the right of access to building permits cannot be expected to indicate the date and number of the deed or building practicesince whoever exercises the right of access “by definition has no knowledge or has limited knowledge of what is requested, given that access has the very function of allowing knowledge of the administrative documents. What is therefore required of the person making the request is that he provides the elements necessary to allow the body to carry out the research“(2).
Finally, also considering the type of documentation required, no appreciable need for privacy protection can be found coming into relief essentially construction qualifications which therefore do not refer to the personal and private sphere of the interested parties(3).
Note
(1) TAR Liguria, section II, sentence of 7 July 2023, n. 705: “in the matter of condominiums in buildings, the jurisprudence constantly admits the right of the condominium to access the building practices concerning the condominium building (see TAR Campania Naples Section VIII, 27/3/2023, no. 1890; id., 9/3/2023, no. 1540; id., 14/2/2023, no. 1006; id., 10/11/2022, no. 6953, where the specification that “the right of access can be exercised also and independently of the pendency of a judgment – among other things, knowledge of the documents can be instrumental in the evaluation of the appropriateness and convenience of its initiation – and of the circumstance that in such a hypothetical judgment the requested documentation would be acquirable in the context of the relevant investigation”) and, reciprocally, the right of the individual condominium owner to obtain a copy of the building and landscape titles requested by the condominium (TAR Liguria, I, 11.1.2019, n. 15)”.
(2) TAR Campania, Naples, section VI, sentence of 25 February 2020, n. 859.
(3) TAR Campania, Naples, section VI, judgment of 22 March 2021, no. 1875 and 22 September 2021, no. 5974.
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