In recent years, the practice of renting apartments as bed and breakfasts (B&Bs) has become increasingly popular in Italy. However, when you live in a condominium, important questions arise regarding the possibility of starting a B&B business within your apartment.
Can the condominium regulations prohibit this activity? And what are the laws that regulate this situation?
In this article we will explore the various legal and regulatory aspects related to managing a B&B in a condominium context, providing a clear overview of the current provisions.
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Condominium regulations and limitations on the use of properties
One of the most important aspects to consider when you intend to start a B&B in a condominium is the condominium regulations. This document, drawn up at the time of the establishment of the condominium or subsequently modified with the agreement of the condominium owners, establishes the rules that govern the use of the common areas and of the individual real estate units.
But can a condominium regulation prohibit the opening of a B&B?
According to Italian jurisprudence, the condominium regulation can actually provide restrictions on the use of apartmentsincluding the prohibition to carry out commercial activities such as a B&B. However, for such a prohibition to be valid, it must be clearly expressed in the regulation and cannot simply be inferred from generic clauses.
The Court of Cassation, in several rulings, has reiterated that only clauses that explicitly impose constraints or prohibitions can be considered valid and binding for condominiums.
It is important to note that, even if a condominium regulation provides for a prohibition, its modification is not simple. According to art. 1138 of the Civil Code, to introduce or modify a clause that limits the use of private property, the unanimous consent of the condominium members is required, therefore a qualified majority is not enough.
Article No. 1138
Condominium regulationsWhen the number of condominium owners in a building exceeds ten, a regulation must be drawn up, which contains the rules regarding the use of common things and the distribution of expenses, according to the rights and obligations of each condominium owner, as well as the rules for the protection of the decorum of the building and those relating to administration.
Each condominium owner can take the initiative to draw up the condominium regulations or to revise the existing ones.
The regulation must be approved by the assembly with the majority established by the second paragraph of article 1136 and attached to the register indicated by number 7) of article 1130. It can be challenged pursuant to article 1107.
The provisions of the regulation cannot in any way undermine the rights of each condominium owner, as they result from the purchase deeds and agreements, and in no case can they derogate from the provisions of articles 1118, second paragraph, 1119, 1120, 1129, 1131, 1132, 1136 and 1137.
The provisions of the regulation cannot prohibit the ownership or possession of domestic animals.
This makes it difficult to introduce new bans, especially in condominiums where not all owners share the same vision on the use of the apartments.
Furthermore, it is necessary to consider the distinction between contractual regulation and assembly regulation. The first, approved unanimously or contained in the deed of sale, has greater binding force, while the second, approved by majority in the assembly, has a more limited value and can be contested in court.
Therefore, if the regulation is contractual in nature and includes specific clauses prohibiting the opening of activities such as B&Bs, such prohibition will generally be considered valid and enforceable.
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Relevant judgments on the topic
Italian jurisprudence has addressed the issue of compatibility between B&B activities and condominium regulations several times. One of the most relevant rulings is the judgment no. 24707 of 2014 of the Court of Cassation, which established an important principle regarding the correct interpretation of the clauses of the condominium regulations.
In this case, the Court stated that a condominium regulation may impose limitations on the use of real estate units, including the prohibition of activities such as bed and breakfast, only if such limitations are expressed in a clear and unambiguous manner. The Court rejected the broad interpretation of the “civil dwelling” clause, emphasizing that the activity of bed and breakfast does not imply a change in the intended use of the property, unless the regulation expressly provides for the prohibition of such activity.
Furthermore, the Court highlighted that, in the absence of an explicit clause prohibiting the use of apartments for hospitality activities, such activities cannot be considered automatically prohibited. This principle was further reaffirmed with the statement that any regulatory prohibitions must be clearly expressed and cannot be deduced from generic clauses or restrictive interpretations.
This ruling therefore confirms that, in order to prohibit the opening of a B&B within a condominium, it is necessary that the contractual condominium regulations contain a clear and specific provision to this effect.
In the absence of such a provision, the B&B activity can be considered legal, unless it is demonstrated that it causes significant damage to other condominium owners or compromises the safety and tranquility of the condominium.
Download the ruling here.
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Regional and national regulations on B&B activity
In addition to the condominium regulations, it is essential to consider the regional and national regulations that govern the B&B activity. In Italy, each region can adopt specific regulations to govern the opening and management of accommodation facilities such as B&Bs. These regulations establish technical, health and safety requirements that must be respected to legally exercise the activity.
For example, the Regional Law of Lazio n. 16 of 2008 clarifies that the use of apartments as B&Bs does not imply a change in the intended use for urban planning purposes, as long as the specific rules for the management of accommodation facilities are respected. This law emphasizes that the B&B activity can be compatible with the intended residential use, as long as it does not alter the normal use of the property and does not cause inconvenience to other condominium owners.
At the national level, the Civil Code and urban planning regulations establish that commercial activities must not compromise the decorum and tranquility of the condominium. Changes to the intended use of properties must be approved according to the established procedures and must not go beyond what is provided for by the condominium regulations and regional laws.
In summary, while the condominium regulations establish the specific rules for the use of the properties within the condominium, regional and national regulations provide the general legal framework for the activity of B&B, ensuring that such activities are carried out in compliance with the safety and residential use regulations.
