Common courtyard and garage roofing: the expenses
The attic separating two housing unitsone above the other and belonging to different owners, must be considered, unless proven otherwise, shared property on both floors; such presumption “iuris tantum” applies to all structures that have a support and covering functionas they perform an inseparable dividing function between the two floors, with equal utility and use for both and correlative uselessness for the other condominium owners, with the consequence that the costs for their maintenance and reconstruction are shared equally by the respective ownersas provided for by art. 1125 of the Civil Code. In line with the above-mentioned rationale, art. 1125 of the Civil Code provides that the costs for the maintenance of the ceilings are to be borne in equal parts by the owners of the two floors, while The owner of the upper floor is responsible for covering the floor and The owner of the lower floor is responsible for plastering, painting and decorating the ceiling (Naples Court, 19 March 2024, no. 3107).
Taking the above into account, in the event of yard repair or access road to the condominium building which also serves as a cover for the underground rooms owned exclusively by a single condominium ownerfor the distribution of the related expenses, the following must be applied analogouslyArticle 1125 of the Civil Codewhich takes on all maintenance costs of the part of the complex structure identified with the floor of the upper floor to whomwith the exclusive use of the same, determines the need for related maintenancein this sense a particular application of the general principle dictated by the second paragraph of article 1123 of the civil code occurs (for example, App. Brescia 28 September 2023, n. 1457).
Shared courtyard and multi-storey underground garages: a recent case
The story begins when a company was suffering from heavy infiltrations within its premises. Subsequently, he sued the condominium pursuant to art. 700 of the Code of Civil Procedure before the Court of Naples to obtain a sentence against the defendant to renovate the condominium courtyard. Following the order CTU it emerged that the cause of the infiltration phenomena was due to the age of the paving of the shared courtyard and the lack of a waterproof joint; consequently the Court ordered the condominium to redo the courtyard according to the indications provided in the technical report filed in the case file.
The plaintiff company again turned to the Court because the total amount of the works for resurfacing the courtyard had been attributed by the assembly for 1/3 to the condominium and for 2/3 to the underlying properties, including that of the plaintiff. The latter was convinced that the correct distribution criterion to be adopted in this case was that provided for by theart. 1125 and not the one established by art. 1126 of the Civil Code. The plaintiff company therefore asked the Court to declare the nullity and/or annulment of the condominium resolution which had divided the costs and to order the defendant to preparation of a new distribution plan according to the criteria set out in art. 1125 of the Civil Code
The application was granted. The condominium appealed to the Court of Appeal, pointing out that there were two levels underneath the condominium courtyard. The Court confirmed the first-instance decision, noting that the courtyard in question, acting as an access ramp to the stairs, offers a utility that is certainly greater to the condominium owners than to the owners of the premises belowwhich is why maintenance costs must be divided according to the criterion set out in Article 1125 of the Civil Code. In any case, in the opinion of the Court, the presence of multiple levels of floors below the courtyard does not call into question the application of the criterion provided for by the said article 1125 of the civil codesince this is a circumstance which is unsuitable to undermine the greater utilities that the same courtyard offers to the condominium owners for transit and daily access to the properties built above the said attic compared to those located on lower levels with respect to the floor level.
