In the world of condominiums, the question of changes to the common parts it is often a source of debates and disputes. Recently, the Court of Appeal of Genoa issued a sentence (n. 1179/2024) which clarified the legitimacy of an intervention carried out by a condominium owner, who had created a pocket terrace by modifying the pitch of the condominium roof.

But what are the limits within which a condominium owner can intervene on a common area? Is the approval of the assembly always necessary?

Let’s find out by analyzing the sentence and the legal principles that derive from it.

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The case: a “pocket” terrace and the contested resolution

The controversy originated from the decision of a condominium owner to create a pocket terrace, i.e. an opening on the slope of the condominium roof to create a space for exclusive use. The intervention consisted of partially cutting the roof of the building, with the aim of creating a walkable surface that looked directly onto the property unit below.

The condominium assembly, called to discuss the intervention, had rejected the condominium’s request, believing that it was an innovation pursuant to article 1120 of the Civil Code. According to this rule, innovations on the common parts of the building can only be approved with a qualified majority, and must guarantee the collective interest without compromising the stability or aesthetics of the building.

The negative decision was based on two main objections:

  • Changing the intended use of the roof: The assembly maintained that the roof was intended exclusively for covering the building and not for private use.
  • Lack of formal authorization: According to the condominium owners, the construction of the terrace required qualified assembly approval, as a simple communication was not sufficient.

Faced with this resolution, the condominium owner decided to challenge the decision, contesting the qualification of the intervention as an innovation and arguing that the work instead fell within the modifications governed by Article 1102 of the Civil Code, which regulate the best enjoyment of common property, for which prior approval by the assembly is not necessary.

This distinction between “innovation” and “modification” became the focus of the legal dispute, bringing the issue to the Genoa Court of Appeal.

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What the law says: difference between Modifications and Innovations in the Condominium

The heart of the controversy resolved by the Court of Appeal of Genoa lay in the correct interpretation of articles 1102 and 1120 of the Civil Code, two fundamental rules in the management of the common parts of a condominium. Understand the distinction between modifications And innovations it is essential to evaluate the legitimacy of interventions such as the one covered by the sentence.

  • Article 1102 cc – Modifications for better enjoyment:

    The article establishes that every condominium owner can use common property (such as a roof or a courtyard) to make better enjoyment of it, provided that:

    • Do not alter the original intended use.
    • Do not prevent equal use by other condominiums.
    • The intervention is carried out at the exclusive expense of the person carrying it out.

    According to consolidated jurisprudence, if a condominium owner makes a modification that improves their enjoyment of the common area without compromising the rights of others, authorization from the assembly is not necessary, unless otherwise provided for in the condominium regulations.

  • Article 1120 cc – Innovations in the common areas:

    Otherwise, article 1120 regulates innovations, i.e. works that significantly alter the structure, function or destination of the common thing. To be approved, these require:

    • A resolution of the assembly with a qualified majority (2/3 of thousandths).
    • The collective interest in modification.
    • No damage to the stability, aesthetics or safety of the building.

The key to the controversy:

In the case in question, the Court of Appeal had to establish whether the intervention of the condominium owner (the creation of the pocket terrace) was an innovation or a modification. The difference is crucial: if it had been one modificationthe condominium owner would have had the right to proceed without the consent of the assembly. If instead it had been ainnovationa condominium resolution with a qualified majority would have been necessary.

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Practical examples to understand the difference between Modifications and Innovations

To better understand the distinction between modifications And innovations in the condominium, here are some practical examples that reflect the application of articles 1102 and 1120 cc:

  • Amendments (Art. 1102 cc) – Authorization from the assembly is not required:
    • Installing awnings on your balcony.
    • Installation of a private air conditioning system on the external wall, without altering the aesthetics of the building.
    • Use of a space under the stairs to store bicycles, without preventing access to other condominiums.

    In these cases, the condominium owner improves his own enjoyment of the common part without altering its destination or preventing others from using it.

  • Innovations (Art. 1120 cc) – Requires a resolution with a qualified majority:
    • Construction of an elevator in a building without one, modifying the original structure.
    • Transformation of a condominium courtyard into a parking lot.
    • Replacement of the condominium roof with a completely different material that alters the aesthetics of the building.

    Here the intervention modifies the destination or structure of the common part and therefore requires the consent of the qualified majority.

The specific case of the pocket terrace: modification or innovation?

In the case examined by the Court of Appeal of Genoa, the condominium owner had carried out an intervention consisting in the creation of a pocket terrace, i.e. an opening in the pitch of the roof. The central question was to establish whether this modification was one of the modifications (as claimed by the condominium owner) or between innovations (as contested by the assembly).

The assembly had considered that the intervention was an innovationsince cutting the roof would have altered the original roofing purpose of the building. On the other hand, the condominium owner maintained that it was a simple modification, as it did not compromise the collective use of the roof and did not jeopardize the stability of the building.

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The analysis of the Court of Appeal of Genoa: the decision on the pocket terrace

The Court of Appeal of Genoa, in evaluating the dispute, had to apply the principles established by the Supreme Court of Cassation in the referral sentence. The Court of Cassation, in fact, had already clarified that the modifications made by a single condominium owner to a common part, such as the roof, fall within the scope of Article 1102 of the Civil Code, provided that:

  • The intervention does not alter the original intended use.
  • Do not prevent the same use by others.
  • Do not compromise the stability of the building.

In the specific case, the Court underlined some key elements that led to the annulment of the condominium resolution:

  1. Absence of damage to the function of the roof:
    The Court highlighted that the intervention, although involving a cut in the roof pitch, had not compromised its function of covering and protecting the underlying structures. The technical reports presented at first instance had in fact confirmed that there were no infiltrations or structural damage.
  2. No significant structural modification:
    The intervention of approximately 18 square meters was considered by the Court as not significant compared to the overall extension of the roof. This strengthened the thesis that it was one modification rather than an innovation.
  3. Lack of prejudice for Other Condominiums:
    No impediment emerged for the other condominiums in using the common roof. In fact, the affected portion of the roof was not accessible or usable by the other owners for common purposes before the intervention.
  4. Exclusive Property of the Attic:
    It was ascertained that the area under the roof subject to the intervention was the exclusive property of the condominium owner who created the terrace. This element strengthened the legitimacy of the work as a more intense use of property without affecting the rights of others.

In light of these elements, the Court of Appeal of Genoa has canceled the condominium resolution who had rejected the intervention, believing that the creation of the pocket terrace was part of the modifications permitted from article 1102 cc, without the need for approval by the condominium assembly with a qualified majority.