It is complex to establish the ownership regime of an underground space within a historic building. In similar contexts, the qualification of the asset, whether a common part or exclusive property, does not only depend on its physical location or functional destination, but requires evaluating a complex set of elements: the construction history of the building, the titles of origin, the cadastral records, the transfer deeds and, above all, the condominium regulations.
The story
The Court of Cassation, with order dated 27 June 2026 n. 22115, addressed exactly this problem, in a matter that revolves around the qualification of an underground room and the legal value of the condominium regulation of 1962. This is the interpretative issue that the decision brings to the foreground, showing how the nature of the regulation cannot be dismissed with generic formulas, but requires a careful analysis of its formation, its transcription and the unanimous consensus that supports it.
The story began when some condominium owners claimed that an underground room was in reality a common good and not the exclusive property of a participant in the condominium. For this reason, in 2011, they served a summons to declare the nullity of the 2001 sale, with which that participant had purchased the premises from the previous owner.
The defendant appeared and asked to summon his predecessor, to be guaranteed against any consequences of the case. The person called, in turn, claimed to have sold the basement as the legitimate owner, claiming that ownership came from a family succession. The Court of Rome, after the investigation, rejected the request, considering that in the historical and cadastral documents «the rooms in question… had always been indicated as accessories to the rooms above and not as condominiums».
The case continued on appeal on the initiative of one of the plaintiffs. The Court of Appeal, however, confirmed the decision of the Court: according to the judges of second instance the place was not ordinary. Above all, the Court stated that the condominium regulation had no value for the purposes of ownership, because it was intended only to regulate the use of the common areas.
The appeal and the decision of the Supreme Court
According to the appellant condominium owner, the 1962 regulation, approved unanimously and by public deed, was wrongly not considered as a true contractual regulation, capable of affecting the ownership regime. However, in the appeal it was highlighted that the regulation, in fact, «it was approved by public notary deed on 26 April 1962» and transcribed in the real estate registers, as well as being referred to in subsequent sales deeds.
The Court of Cassation accepted precisely this reason. According to the supreme judges, a regulation approved unanimously can constitute a negotiation title capable of modifying real rights, making exclusive goods common or vice versa. The Court therefore criticized the appeal decision: it could not exclude “a priori” the relevance of the regulation, but had to evaluate and interpret it like any other title.
The other grounds of appeal were absorbed, because the solution to the main issue (the nature and scope of the 1962 regulation) is preliminary to any other assessment.
The Court of Cassation overturned the sentence and referred it to the Court of Appeal of Rome, in a different composition, to re-examine the issue taking into account the possible contractual nature of the 1962 regulation and its suitability to affect the ownership of the underground premises.
Concluding considerations
The Court of Cassation essentially states that the Court of Appeal was wrong in discarding the 1962 regulation without even reading it, even though it was a contractual regulation, approved by all, drawn up with a public deed and transcribed. An act like this cannot be treated as a simple assembly regulation: at least in theory, it can also affect the ownership of goods, making parts common that were previously exclusive or vice versa.
The Court, however, does not say that that regulation really changed the ownership of the premises. It does not say that the appellant is right. It just says one very simple thing: the regulation cannot be ignored. It must be examined as any other title is examined: it is read, it is interpreted, it is understood what it establishes and what effects it produces.
In practice: the Court of Appeal will have to do the job again, this time also considering the 1962 regulation.
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