Condominium walls and common function: what does the law establish?

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Emma Potter

In the condominium context, distinguish between load-bearing walls, perimeter walls And boundary walls is of crucial importance when it comes to determining the common or private nature of such items and the related implications on expenditure.

But can a wall without a load-bearing function still be considered common?

A recent ruling from the Court of Naples (n. 9927 of 8 November 2022) provides interesting answers on this topic, in particular regarding retaining walls located in privately owned gardens within a condominium.

What are the criteria for establishing whether a wall has condominium relevance? How are expenses divided correctly? Let’s discover together the details of this important ruling.

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Perimeter, master and load-bearing walls: the fundamental differences

To understand the legal issues relating to walls in condominiums, it is essential to clarify the distinctions between perimeter walls, master walls and load-bearing walls.

The perimeter walls delimit the entire covered surface of the building, contributing to its volumetric consistency and protection from atmospheric agents. Furthermore, they define the architectural aspect of the condominium, which is why they are generally considered common parts and, therefore, subject to the rules of management and distribution of expenses between the condominiums, even if they are located in private areas.

Although the perimeter walls are not load-bearing, they are still classified as main walls by virtue of their structural role for the entire building.

Therefore, the walls advanced or set back from the main lines of the property still fall within the common areas of the condominium.

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When is a wall relevant for the condominium?

Establishing whether a wall has condominium relevance is not always simple, especially when it comes to allocating the costs of its maintenance or repairs. The assessment becomes particularly complicated if the wall does not constitute a facade of the building, but is positioned further back, also extending into privately owned land.

The situation becomes even more intricate if the wall has a function limited to specific private areas, such as the gardens on the ground floor of exclusive property.

These difficulties emerged precisely in the case dealt with by the Court of Naples, in which the nature of the wall in question – a retaining wall for the gardens – raised doubts about its condominium relevance and the obligation for all condominium owners to participate in the expenses. .

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The case examined by the Court of Naples

The case in question originated from the condominium assembly’s decision to approve maintenance work on a retaining wall that bordered the gardens of the property units located on the ground floor.

The meeting had resolved that the costs for the work on the wall should be divided among all the condominiums, according to their respective thousandths of ownership. Some condominium owners, however, contested this decision, arguing that neither the retaining wall nor the gardens were to be considered condominium assets, therefore not subject to the art. 1117 of the Civil Code, which regulates the definition of common parts.

Article n°1117 civil code
Common parts of the building

They are the object of common property of the owners of the individual real estate units of the building, even if they have the right to periodic enjoyment and if the contrary is not indicated by the title:
1) all parts of the building necessary for common use, such as the ground on which the building stands, the foundations, the main walls, the pillars and load-bearing beams, the roofs and flat roofs, the stairs, the entrance doors entrance, vestibules, passageways, porticoes, courtyards and facades;
2) the areas intended for parking as well as the rooms for shared services, such as the concierge, including the doorman’s accommodation, the laundry, the drying rooms and the attics intended, due to their structural and functional characteristics, for common use;
3) works, installations, artefacts of any kind intended for common use, such as lifts, wells, cisterns, water and sewage systems, centralized distribution and transmission systems for gas, for electricity, for heating and air conditioning, for radio and television reception and for access to any other type of information flow, including by satellite or cable, and the related connections up to the branch point to the property premises individual of the individual condominiums, or, in the case of unitary systems, up to the point of user, except as provided by sector regulations regarding public networks.

According to these condominium owners, the assembly could not have charged all the owners the costs of a work that did not benefit the entire condominium, but only the owners of the real estate units on the ground floor.

This conflict of interpretations has led to the issue being brought to court, with the Court’s task being to clarify the function and ownership of the wall in question.

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The decision of the Court of Naples: the wall is not a common part

After examining the situation, the Court of Naples made its decision in favor of condominiums who had opposed the sharing of expenses, establishing that the retaining wall of the gardens could not be considered a common good pursuant to art. 1117 of the Civil Code.

The evaluation of the Technical Consultant (CTU), in agreement with that of the condominium technician, highlighted that the wall in question it had no load-bearing function or structural for the condominium building.

The wall, in fact, had the sole function of delimiting and containing the tufaceous bank beneath the gardens, which belonged exclusively to the owners of the real estate units on the ground floor. Consequently, the Court established that, being an asset of exclusive private use, the retaining wall cannot be considered a common part of the condominium.

From this it follows that the costs for its maintenance must not be shared among all condominiums, but only among the owners of the units served by this structure.