Condominium courtyard: is it always a common good? Some special cases

|

Emma Potter

Exclusion of real estate units from co-ownership of goods

However, it cannot be ruled out thatexclusion of some real estate units from the co-ownership of presumably common goods; this can be deduced from the constitutive title of the condominium or must be provided for in the regulation of condominium which, however, can produce the effect of modifying the content of the right of ownership of the owners of the individual real estate units – otherwise extended to all the assets which, by express regulatory provision such as the courtyard or by their structural destination, are classifiable as common – only when it is attached to the deed of incorporation and referred to in it so as to be an integral part of it or, again, when, even if it is an autonomous deed, it can be classified as an “expression of contractual autonomy” and that is be “approved or accepted with individual consent of the individual condominiums and therefore aimed at establishing, modifying or transferring the rights attributed to individual condominium owners by the purchase deeds or agreements” (Cass. civ., sez. II, 06/07/2022, n. 21440).

The courtyard between several buildings

There legal presumption of communion of certain parts, established by art. 1117 of the Civil Code, which is certainly applicable when it concerns parts of the same building, can be considered applicable by analogy even when it concerns not common parts of the same building, but rather common areas of neighbouring and independent buildingsprovided that the goods are objectively and permanently intended for use or enjoyment, as in the case of courtyard existing between several buildings belonging to different ownerswhere the same is structurally intended to give air, light and access to all the buildings surrounding it.

The Court of Cassation noted that the concrete and objective destination of the courtyard to serve a single original real estate complex, which later merged into separate buildings, functionally determines the common nature of all the buildings servedwithout the need for further specification in the individual purchase deeds; in fact, due to the “presumption” referred to in art. 1117 of the Civil Code, paragraph 1, and the transcription of said purchase deeds of exclusive ownership – including pro quota, without the need for specific indication, also of the common parts – the resulting condominium situation is enforceable against third parties (Cass., Sect. II, 17 February 2020, n. 3852).

External area and lack of express reservation of ownership in the original title of the condominium

The external area of ​​a condominium building, of which there is no express reservation of ownership in the original title of incorporation of the condominium and any reference has been omitted in the individual deeds of transfer of the real estate units, it can be considered as condominium naturepursuant to art. 1117 of the Civil Code, as it is subject to the special urban planning regulations dictated by art. 41-sexies of Law 1150 of 1942, introduced by art. 18 of Law 765 of 1967, where it is ascertained that the same is intended for parking according to the provisions of the building permit, original or in variant, and which then, during construction, was reserved for this purpose and not used, instead, to carry out works of another nature (Cass. civ., sez. II, 8 March 2017, n. 5831).

Condominium rights on the courtyard following the subdivision of the building

It is observed that the condominium generally arises with the first act of subdivision of the building, previously belonging to a single owner, and therefore with the first act of transfer of ownership from which it emerges that the individual real estate units belong to multiple subjects and there are common assets. Even as a result of a division (judicial or amicable), the acquisition of exclusive ownership of the individual housing units of a building by the parties (already co-owners of portions of the same by virtue of joint inheritance) and the presence of common parts, can determine the birth of a condominium, to which the relative discipline applies.

Similarly, in the event of the division of ownership of a common building into separate real estate units, following the attribution in the event of forced execution, a condominium situation is determined for which the legal presumption “pro indiviso” applies to those parts of the building which, due to location and structure, are – at that moment constituting the condominium – functional for common use, such as the courtyard structurally and functionally intended to serve several neighboring buildings. This presumption can be overcome only if the first decree with which the judge transfers a lot of the expropriated property to the successful bidder, repeating the description of the property contained in the order ordering the sale, contains a clear and unequivocal the intention to reserve the ownership of the courtyard exclusively to one of the successful bidders of the separate lots (Cass. civ., sez. II, 16/01/2024, n. 1615). In other words, art. 1117 cc, as interpreted by the legitimate jurisprudence, it also finds full application in the case of a condominium “created in court”.