The role of the assembly and the administrator
Consequently, the decision to proceed with roof renovation work falls within the competence of the condominium assembly. If the condominium does not intend to proceed with the works, the action aimed at repairing or reconstructing the same must be proposed against the condominium, in the person of the administrator, as representative of all the obliged condominiums, and not of the owner or holder of the exclusive use of the pavement.
In fact, the latter can be summoned to court on a personal basis only if he or she impedes the execution of maintenance or restoration work, decided by the other obligors, and for the sole purpose of feeling inhibited in obstructive behavior or ordering behavior of indispensable cooperation, not also in order to feel declared obliged to directly carry out the same works.
Exclusive property flat roof: the breakdown of expenses
In any case, all interventions connected to the renovation of the terrace are subject to the distribution provided for by Article 1126 of the Civil Code. When a flat roof is intended for the exclusive use of one or more condominiums, the costs for its repair or reconstruction do not fall entirely on those who use it. This is because, even if access is reserved, the pavement still performs a fundamental function for the entire building: that of covering the apartments below.
For this reason, the law establishes a particular distribution criterion. The condominium owner who has exclusive use of the pavement is required to bear one third of the costs. The remaining two thirds, however, must be divided among all the condominiums who benefit from the coverage offered by the pavement, i.e. those who live on the floors below. The subdivision takes place based on the value of the individual properties, according to thousandths.
This criterion is certainly used for the structural elements of the pavement, such as the attic, waterproofing sheaths or other technical components.
Is Article 1126 of the Civil Code also applicable to the cornice-extension of the pavement and the scaffolding necessary for its reconstruction? The answer to the question is contained in a recent decision of the Court of Appeal of Genoa (sentence no. 927 published on 24 July 2025).
The story
The story revolves around a civil lawsuit brought by a condominium owner who challenged a meeting resolution with which the distribution of extraordinary expenses for the renovation of the roof terrace of the building was approved. The condominium owner, absent from the meeting, contested the criterion used to divide some expense items, claiming that it was incorrect.
According to the actress, all the costs relating to the works, not only those for the flat roof, but also those for the railings, the dividing walls, the cornice and the scaffolding, should have been divided according to the criterion set out in Article 1126 of the Civil Code. Instead, the condominium had applied the general criterion of Article 1123 of the Civil Code, dividing these expenses among all the condominiums based on the thousandths of ownership.
The condominium, appearing in court, contested all the requests, claiming that they were unfounded both from the point of view of facts and law. In particular, he defended the correctness of the distribution of expenses, stating that the criterion of the art had been rightly applied for the renovation of the terrace. 1126, while for the other works – such as the cornice, scaffolding, walls and railings – it was correct to apply the general criterion of the art. 1123, as these are interventions not directly linked to the hedging function.
According to the condominium, the scaffolding had been installed exclusively for the reconstruction of the cornice, which has a decorative and non-structural function. The walls and railings, however, had been demolished and rebuilt to allow correct execution of the waterproofing and insulation works, necessary to avoid heat loss and the formation of thermal bridges, for the benefit of all condominiums. The Court found the plaintiff’s arguments to be well founded and ordered the annulment of the contested resolution. According to the judge, the interventions covered by the resolution were closely linked to the renovation of the roof terrace, and therefore had to be subject to the distribution criterion envisaged by Article 1126 of the Civil Code, applicable in the case of exclusive use of the flat roof.
The decision
The Court of Appeal noted that the cornice cannot be considered an integral part of the terrace but rather a decorative and protective element of the facades, comparable to the continuation of the perimeter walls and therefore a condominium asset. According to the Court of Appeal, this qualification excludes the applicability of Article 1126 of the Civil Code and instead requires the distribution of the related expenses according to the thousandths of ownership pursuant to Article 1123 of the Civil Code.
Similarly, in the opinion of the judges of second instance, the expense for the scaffolding, necessary for the cornice, even if also used for the terrace, must be divided by thousandths among all the condominiums. The main function of the scaffolding was linked to the reconstruction of the cornice and it would not have made sense, either from a technical or economic point of view, to install both scaffolding and a shooting castle, generating a superfluous expense and contrary to the interests of the condominium. In practice, it was decided to use the scaffolding also for the terrace because it was already there for the cornice, avoiding a double expense which would have been unjustified.
However, in evaluating the second ground of appeal relating to the dividing walls and railings present on the condominium terrace, the Court of Appeal confirmed the correctness of the first instance sentence. The central point is that these artefacts are intended to delimit the portions for exclusive use by individual condominiums. However, it emerged that these artefacts physically persist on the terrace and their presence interferes with the restoration work and affects its proper execution. Consequently, interventions on these elements must also be included in the distribution of expenses according to the criterion provided for by Article 1126 of the Civil Code, already adopted by the Court.
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