What if the condominium objects?
The question can become more complex if the condominium raises objections. In similar cases, it is possible that a intervention of the condominium assembly For clarify the limits within which the works can be carried out.
It is true, however, that each condominium can use the common parts of the building, as it provides for theArticle 1102 cc This principle allows the individuals of make changes without necessarily having to obtain the authorization of the assemblyprovided that these interventions do not alter the destination of the area nor prevent others from using it.
It should also be considered that these interventions can be regulated by contractual clauses of the regulation. In this regard, it deserves to be taken into consideration A recent decision of the Court of Milan (sentence no. 2486 of 24 March 2025).
The story
An actor condominium complains that a condominium made it run unauthorized works that involved the common partsspecifying that the Assembly had authorized the only execution of the improvement works proposed by the previous owner, the assignment of the defendant. In particular, the actor condominium disputes the occupation by the defendant of the subsoil along the condominium corsel (For the whole sedime of the trench for the laying of the polypper, having a variable width from 130 cm to 140 cm and a length ranging from the entrance gate to the condominium corsel to the MT electric cabin at the service of the condominium).
According to the actor, the works carried out by the defendant were illegitimate in that, in addition to having imposed on all the condominiums of the serious and unjustified limitations to make equal use of the common thing (the subsoil) pursuant to art. 1102 cc, would have been carried out in the absence of authorization of the assembly and in violation of articles 14 and 21 of the Regulation. Consequently, the condominium asks to condemn the counterpart to the removal of all installations and al restoration of the original conditionswith the obligation to fully incur the related costs. In the event that the counterparty does not carry out the interventions within the established term, the actress also asks to be authorized to carry out the works directlywith total charge of the defendants.
Finally, it also requires the compensation for damages deriving from the disputed works, with the condemnation of the counterparty to pay the sums that will be ascertained during the judgment. The defendant maintains that the works carried out are legitimate as they are carried out in full compliance with art. 1102 cc, without any need for assembly authorization. In any case, it maintains that the regulation invoked and produced by the condominium was not opposable as it is different from that attached to its own contract for sale of the properties.
The decision
The Court gave reason to the condominium. The same judge noted that the rules of the regulation referred to by the condominium-actor apply in the presence of works that entail “innovations”: in other words, the same regulatory rules were reproductive of the content of art. 1120 cc the judge specified that The works created by the condominium are not innovations but changes of a common part. Such interventions, aimed at partial occupation of the subsoildid not alter the original function and destination of the subsoil (which has the subsidiary function of passage in it of pipes and pipes) but were performed to obtain the best, most comfortable and rational use of the common thing.
According to the Court, the works carried out by the defendant certainly constitute a Executive technical bond (constraint for the execution of other works) but not a legal constraint: no evidence was provided, whose burden was burdened on the actor condominium, which showed how the presence of the pipes actually compromised the right of equal use due to all condominiums, in proportion to the respective shares owned by the common good. After all, The single condominium can legitimately intervene in the courtyard tubes in order to hold an asset of its exclusive property to the water – central sewer systemsbecause on the one hand the destination of this space common to illuminate and ventilate the real estate units of the other condominiums, is not altered, on the other The passage of pipes and pipes falls within the subsidiary function of the subsoil of the courtyard (Cass. Civ., Section II, 22/09/2015, n. 18661).
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