Condominium ownership of the lift shaft and illegal occupation by condominium owners, what should be done?


Emma Potter

L’elevator installed in the building after construction of the latter, for initiative by the condominium owners, it may not even fall within common property of all the condominium owners, but belong only to those of them who have installed it at their own expense.

This gives rise to a condominium particular partial communion of the owners of the elevator, similar to the situation brought into mind by the art. 1123 cc, paragraph 3, communion which is distinct from the condominium itself, until all condominium members have decided to participate.

Outside of this particular situationL’The elevator system is understood to be common propertyaccording to presumption referred to in the art. 1117, n. 3 of the Civil Code, between all condominiums in proportion to the value of the exclusive property unit, and the distribution of expenses relating to the lift is regulated by the criteria established by the articles. 1123 and 1124 cc

Presumption of condominium ownership of the elevator

By virtue of this presumption of condominium ownership, the maintenance costsboth ordinary and extraordinary, must be distributed among all the condominium owners according to the criterion of proportionality dictated by the aforementioned rules, irrelevant to the consideration that the owners of the premises on the ground floor do not actually use them. According to article 1117 of the civil code, the elevator is included among the common parts of the building since it is intended, due to its function, to enjoyment of all condominiums. The elevator is also a common part for the owners of the condominium units located on the ground floor since they can get utility from the system.

The elevator system, as indispensable means for accessing the roof and the roof terrace, has the quality of a common part also in relation to the condominium owners shops or ground floor premises with access from the street, since these condominiums also benefit from it, at least in relation to the conservation and maintenance of the roof of the building, with the consequent obligation also weighing on said participants, in the absence of a contrary title, to contribute to the extraordinary maintenance works and possibly replacement of the lift, in relation and in proportion to the usefulness they can hypothetically derive from it. The presumption of condominium ownership of the system is therefore based on necessary instrumental relationship between the same and common use.

Is the same reasoning also applicable to the elevator shaft? The issue was recently addressed by the Court of Agrigento (ruling no. 20 of 8 January 2024).

The story

The dispute arose at the initiative of the condominium which turned to the Court to hear ascertain and establish the condominium nature of the elevator shaft; according to the plaintiff, in fact, all the condominium owners represented by the condominium administrator pro tempore, were sole and exclusive owners of the aforementioned elevator shaft with respect to any other; the condominium therefore wanted to ascertain the non-existence of competing rights of third parties on the said shaft.

The need to verify the condominium ownership of the property in question arose because the condominium owners had decided to install a lift; However the company entrusted with the assignmentduring the first inspection, noted that the space intended to house the system was partially occupied by another system for the private use of a condominium which connected the basement to the ground floor.

The condominium, therefore, claimed the condemnation to the restoration of the state of the placeswith the removal of the system owned by the defendant. The latter asked, as a preliminary matter, for the integration of the cross-examination with respect to all the condominium owners and, on the merits, for the rejection of the application. In particular, the defendant objected, objecting that it had purchased the property including the elevator/goods lift that connected the ground floor with the basement. Thus, it maintained that the action was time-barred or in any case theadverse possession since the freight elevator had been built by the previous owners, as shown in the 1985 cadastral plans filed in court.

The decision

The Court ruled in favor of the condominium. The expert witness clarified how access to the freight elevator, located between the basement and the ground floor, is within the defendant’s property and not in the condominium entrance hall, also noting that it was installed in continuity with the condominium lift shaft, overlapping at the same. As the expert witness himself added, in fact the two shafts were planimetrically superimposed, with the consequent existence of a single lift shaft, connecting the basement to the terrace floor of the building, currently occupied by the defendant’s goods lift. Taking into account the above the Court noted that the defendant he did not prove a valid reservation by the original owner on the common good.

It is then useless to invoke the usucaption of said space which is presumed to be condominium.. The possession necessary to take advantage of the defendant should have been purchased and exercised publicly (i.e. visible to everyone) and not clandestinely. In other words, the condominium owner who invokes adverse possession must prove exclusive possession of the asset and demonstrate that the right to use the asset by the other condominium owners has been clearly prevented and/or excluded for the necessary period of 20 years, proof which in this case was not achieved. The preliminary investigation carried out, however, confirmed that the other condominium members were not aware of the existence of a freight elevator/lift which connected the ground floor with the basement e this is because the elevator shaft wasn’t even visible.