The fact
A condominium was being sued by an owner of a nearby property who had sold, together with others, the land intended for the construction of the block. In the deed, in article 2, an easement of passage was provided for even with heavy mechanical vehicles and the right of transit in the condominium road to inspect the water tanks. The plaintiff complained that the access ramp was too narrow and inclined, preventing the passage of heavy vehicles, and that the parked cars of the condominiums hindered the exercise of the easement.
The plaintiff therefore asked for a declaration of the impossibility of using the easement, the order to adapt the ramp, the removal of impediments to the inspection of the tanks and the payment of a sum pursuant to art. 614-bis cpc for the delay in the works. The condominium defended itself by claiming that it had no compliance obligations, objected to the lack of passive legitimacy for the conduct of the individual condominium owners and stated that the inspection had never been prevented, requesting the rejection of the applications.
The conclusions of the CTU
In the case examined, the exercise of the right of way, provided for in the purchase and sale contract, allowed the plaintiff to access the condominium road with heavy mechanical vehicles (such as trucks and lorries). This right has been expressly recognized in art. 2 of the deed.
The technical consultancy office (CTU) highlighted that access by heavy vehicles was impossible due to the slope and insufficient width of the ramp, aggravated by the presence of cars parked nearby.
To make the passage practicable, the expert witness proposed to lengthen the ramp by approximately 20 meters on the plaintiff’s land and to delimit a vehicle-free maneuvering area, marked with high visibility horizontal stripes. Furthermore, it was found that the balconies of the building protruded by 1.50 meters and were only 2.75 meters above the ground, preventing the transit of vehicles approximately 3 meters high. For this reason, the technician suggested limiting parking also on the opposite side of the ramp, expanding the maneuvering area beyond the current 2.40 metres.
The decision
In consideration of the conclusions of the expert witness, the Court ruled in favor of the plaintiff. The judge ordered that all the modifications and signs necessary to guarantee the full exercise of the easement must be carried out at the care and expense of the condominium. As regards the interventions necessary to reduce the slope of the ramp and allow the transit of heavy vehicles, the Court established that, since these are works intended exclusively for the benefit of the dominant land, the related expenses must be borne entirely by its owner. This principle complies with the provisions of Article 1069 of the Civil Code, paragraph 2, according to which the owner of the easement is required to bear the costs of the works functional to the exercise of his right, provided that they are carried out causing the least possible inconvenience to the serving land.
The request for the cessation of disruptions in the inspection of water tanks was rejected due to the absence of suitable evidence to demonstrate the impediments complained of. The Court also rejected the request for application of the art. 614-bis cpc, relating to the condemnation of the condominium to pay a sum for each day of delay in the execution of the sentence. In fact, the condominium owners immediately expressed their willingness, even in the context of the settlement proposal, to carry out the works necessary to delimit and signal a maneuvering space free from cars.
Concluding considerations
The owner of the servient land cannot intervene in such a way as to hinder or make the use of the easement more inconvenient. It has been clarified that it is not the benefit that the beneficiary believes he will derive from the easement that matters, but that which is actually foreseen and protected by the title itself (contract, will, sentence, etc.). The works prohibited by the owner of the land serving by the art. 1067 cc are only those that are reflected, altering them, on the essential content of the other person’s servitude right as determined by the title, so as to significantly affect the pace and extension of the utilitas object of that same right (Cass. Civ., section II, 30/07/2019, n.20549).
Please remember that the art. 1069, paragraph 1, of the Civil Code completes the provisions of the art. 1064 cc, recognizing the owner of the dominant land not only the right to exercise the easement, but also to carry out (at his expense) the works necessary for its conservation. At the same time, it protects the serving land, requiring that such interventions be carried out with care so as not to compromise its functionality. Thus, for example, if a third party has a right of easement of passage on a condominium driveway that has deteriorated over time, the owner of the easement has every right to intervene to restore the original conditions and guarantee the continuity of the passage. He can therefore carry out maintenance work, such as asphalting, leveling or consolidating the path, but he must do it at his own expense, because the benefit is his alone. The law then requires that every intervention be carried out with the least possible inconvenience for the owner of the serving land.
