Roof terrace renovation works and the role of the condominium
The flat roof even if owned or used exclusively by a single condominium owner, it serves as a roof for the apartments below. It follows that, even if it belongs to the property or if it is assigned for exclusive use to one of the condominium ownersall condominium owners are required to provide for its repair or reconstructionin competition with the owner or the holder of the exclusive right of use.
It is therefore evident that the decisions regarding the need to proceed with the repair, reconstruction and replacement of the structural elements of the pavement or terrace at level, functional to the roofing of the building (such as attic, waterproofing sheaths, etc.), are up to the assemblywhich is subject to a discretionary assessment of merit. Let’s look at a recent concrete case.
Renovation works of the flat roof-terrace with raising of the parapets
A condominium owner, owner of an apartment located on sixth and last floor of a building set back from the front elevation, he also owned a Terrace owned and for exclusive use, with the function of a flat roof covering the underlying buildings. This coverage had been the subject of renovation works, aimed at remedying infiltrations occurred on the floors below, built by a construction company pursuant to a condominium resolution (on the basis of a technical expert opinion issued in another adversarial proceeding between the parties).
Following the execution of the above-mentioned works, however, the floor level had been raisedwith the consequence that the parapets no longer had the minimum height of one metre: this fact had been ascertained by the Building Police (called to intervene by the same condominium owner) who had then imposed the restoration of the pre-existing situationThe owner of the terrace-slab brought the condominium to court before the Justice of the Peace to have the nullity declared or the annulment ordered former art. 1137 cc of the resolution adopted by the defendant’s meeting on 4 July 2018 at point 6) on the agenda, in the part in which it was decided to carry out renovation works by simply raising the parapets.
The actress, holding responsible for theunlawful raising of the floor level of the terrace, the condominium demanded that it provide for the restoration of the places. The actress maintained that the assembly had resolved, with her abstention from voting, to raise the parapets at her own expense, through adding a handrail to the existing onerather than providing from below, in asavings perspectiveThe condominium supported the vathe validity of the resolution contested because the railing-parapet was to be classified as a common good pursuant to Article 1117 of the Civil Code, with the function of covering the apartments below. The Justice of the Peace ruled against the condominium owner.
The same judge, on the consideration that the AG’s scrutiny of the validity of an assembly resolution is admissible only when the same has been adopted in violation of the law or of the specific regulations contained in the condominium regulations, excluded such violation in the specific case, being ownership of the property right is irrelevant (of the individual condominium owner or the municipality of the group) on the property subject to intervention, where there is an urgent provision from the competent administrative authority which orders the necessary works to be carried out on that property to avoid dangers to the safety of citizens. The Court (acting as appellate judge) confirmed the first instance sentence.
As the Trieste judge noted, the scenario on which the condominium operated consisted of a roof terrace renovated on the basis of a technical consultancy report made in contradiction between the parties (a circumstance peacefully admitted by them), construction work that involved raising the floor level due to the need to overcome the infiltration problems complained of by the condominium owner, which resulted in a reduction in the height of the parapet. This height, by order of the Mayor, had to be restored by the condominium owner, who opted, in agreement with the exclusive owner of the roof terrace itself (who expressed a favorable vote on the adoption of the aforementioned resolution of 17 April 2018), for the creation of the “best final parapet height/cost solution in order to safeguard the safety and aesthetics of the condominium”. Therefore, in the opinion of the Court, the condominium complied with the provisions of the municipal authority, without the possibility of censorship regarding the actions of the condominium community (Trieste Court 7 March 2024 n. 243).
