Room used as a concierge outside the condominium
It must be excluded, however, that a building located in the courtyard in front of the condominium building and outside it, which Not has been used for common services and, by structure and function, included in the common parts of the condominium building indicated in the art. 1117 cc, nor can it be considered as such, in the absence of a clear will of the parties resulting from a suitable titlefor the simple fact that it is registered in the land register as being used as a concierge, as the cadastral classification of goods has a purely descriptive nature in relation to a charge towards the PA and is not suitable, as a subsidiary means of proof, to prevail over the contrary will of the owners (Civil Cassation, section II, 06/11/1987, n. 8222).
The destination for common service
If before the establishment of the condominium the destination for the common service is not given to him, or the space is taken away from him it cannot be considered as a common good (Cass. Civ., section II, 14 June 2017, n. 14796). The subtraction from its destination in the service of the common thing can occur, for example, in the case of contextual put up for salein one of the other real estate units, of the room originally used by the owner of the entire building as the doorman’s accommodation. This exclusion, affecting the establishment of a real estate right, must necessarily result from a written documentjust as the written deed must demonstrate the will of the original exclusive owner to reserve ownership of the assets that fall within the common ones in relation to which the legal presumption operates.
If the above has not happened, to establish whether a real estate unit located in a condominium is common, pursuant to art. 1117 n. 2 of the Civil Code, because it is intended for the doorman’s accommodation, the judge of merit must ascertain whether at the time of the establishment of the condominium, as a consequence of the alienation of the individual apartments by the original owner of the entire building, there was such destination, expressly or in factotherwise the common ownership of the condominiums on it must be excluded (Cass. Civ., section II, 26/11/1998, n. 11996). In any case the elimination of the concierge service also entails the elimination of the destination restriction said above. On the other hand, the rooms for the concierge and for the doorman’s accommodation are certainly susceptible to individual use, as they can be used for a completely different purpose from that for which they were originally intended.
Private property of the doorman’s accommodation and intended for concierge use
The builder of a tenement granted a property in perpetual use to the condominium, so that it could be used as accommodation for the doorman, reserving ownership and excluding the accommodation from being part of common things referred to in the art. 1117c.c., according to the provisions of the art. 20 of the condominium regulations. Subsequently was selling the property. The buyers sued the condominium requesting that the right to use the accommodation be declared unenforceable against them and that the defendant condominium be condemned to restitution and payment of compensation for the illegitimate occupation. The Court found the plaintiffs wrong and the Court of Appeal did the same according to which the builder’s intention was to grant perpetual use, to be understood as constraint susceptible to transmissionof a real nature and to be classified as atypical servitude, in favor of all the properties constituting the condominium.
The Court of Cassation also included it in the scheme of servitudethe constraint relating to the doorman’s accommodation; this classification, in the opinion of the supreme judges, does not lead to an emptying of the content of the property right as the restriction does not cancel any utility connected to the enjoyment of the property; this is because, both in the periods in which the condominium decides not to use the concierge service, and in the case in which the condominium decides the definitive cessation of that service, the owners (the actors in the story) can use the property (Cass. Civ., section II, 10/6/2024, n. 16803).
