The internal walls of the condominium garden
A wall of fencing and delimitation of an exclusive property gardenwhich although it is included in the structure of the real estate complex, cannot in itself be considered included among the common parts pursuant to art. 1117 cc, given that this asset, by its nature intended to perform the function of containing that garden, can be included among the indicated condominium things only where the different destination for the purpose is objectively demonstrated necessary common use or if there is a negotiation title (such as the condominium regulation of a contractual nature or the deed of incorporation of the condominium and therefore the first deed of transfer of a real estate unit from the original owner to another person) that expressly considers said artifact to be common propertythus conventionally assimilating it to the main walls and facades.
Internal garden wall: use and expenses
In light of the principles expressed above the resolution that divides the maintenance costs of the walls relating to private gardens by thousandths among all condominiums cannot be considered legitimate: this resolution would be radically null and void, as the condominium certainly cannot decide in relation to assets which exceed its competence, not having the nature of common assets pursuant to articles. 1117 cc.
However, said walls could be considered, at least in part, common goods if, due to the objective characteristics of the building, they were to perform a aesthetic and decorative function of the building. Let's take it as a hypothesis covering of the wall characterized by friezes and decorations in harmony and with reference to the general context of the condominium: in this situation a distinction could be made between structures, internal cladding and external cladding of the walls, only where the external part of the garden walls has an aesthetic function.
It is not possible to exclude that one contractual clause of a condominium regulation or a meeting resolution expressed unanimously by all the participants of the building establishes that the costs for these masonry fences of private green areas must be a common responsibility.
Special case: when the private garden wall is useful to all condominiums
The owner of an apartment forming part of a condominium challenged a resolution with which they had been decided works relating to the retaining wall of a private garden. The condominium that contested the application appeared in court and requested that it be rejected. In the absence of preliminary investigation, not requested by the parties, the Court rejected the request and ordered the plaintiff to pay the costs of the litigation in favor of the defendant.
The judge of first instance, also in light of the technical consultancy carried out during the mediation phase, stated that the wall in question, in addition to supporting/containing a private garden, also served as boundary wall/perimeter wall of the buildingfitting into it seamlessly, like this delimiting the boundary of the condominium building from the outsideas can be seen from the photographs produced.
The losing party appealed to the Court of Appeal. The appellant continued to maintain the invalidity of the contested meeting resolution concerning the execution of restoration work on a retaining and support wall of exclusive property, due to violation of the art. 1117 cc In particular he argued that the judge of first instance had confused the concepts of retaining or retaining wallon one side, and perimeter wall or boundary wall, on the other, reaching erroneous conclusions. He stated that the wall taken into consideration by the assembly performed only containment functions, that is, it contained and supported an embankment in order to avoid landslide movements of the same. According to the appellant himself, this building could not be confused with the perimeter wall, suitable for delimiting the space occupied by the building, determining the volumetric consistency of the building, outlining its architectural shape.
The Court of Appeal ruled in favor of the condominium; in fact, from the CTU's report, it emerged that the retaining wall in question, although underneath a garden of exclusive property, performs a buttress and support function for the structure of the entire building, and must be included among the common parts, pursuant to art. 1117, n. 1), cc, with the related consequences regarding theburden of repair costs. In this hypothesis, the fall of the wall taken into consideration by the assembly and, therefore, of the embankment, would constitute the initial phase of an erosive action which could cause damage to the stability of some parts further back of the foundation plan of the building; consequentially all condominiums – who obtain a utility from the artefact in question – are required to bear the costs for the conservation of the item (App. Genoa 5 January 2024, n. 10).
