Holiday home in a condominium: the constraints of the condominium regulations


Emma Potter

Holiday home, inn and protection of tranquility in the regulation

In light of the above considerations it is not possible to use one or more apartments as a holiday home in a building if a clause expressly excludes the possibility of carrying out this activity. However, according to a jurisprudential orientation, this activity must be understood prohibited mashed potato in case a clause of the regulation prohibits any activity which involves a systematic influx of strangers from which a disturbance to the tranquility may arise of the inhabitants.

In particular, for this thesis, the activity of holiday homes in condominium apartments – as well as the activity of bed and breakfast or inn – involves an excessive influx of strangers into the building, inevitably affecting the property subject to regulatory protection and, that is, the tranquility of the condominium.

According to a different opinion, however, the destination of a condominium’s real estate unit as a holiday home may not in practice entail any of the aforementioned prejudices, for example, when the number of tenants is, in fact, reduced and if the tenants’ conduct complies with the regulatory provisions, or if the rental activity is occasional. In any case, the holiday home is similar to (short-term) rentalswhile an inn is a low-cost hotel of a very modest category, usually used to indicate a restaurant with accommodation (Cass. civ., sez. II, 20/10/2016, n. 21307).

The enforceability of the prohibition on holiday homes in condominiums against third-party purchasers

Clauses that prevent the condominium unit from being used as a holiday home fall into the category of atypical (mutual) servitudes; consequently, the enforceability of such limits to third party purchasers (i.e. those subsequent to the first purchaser who purchased directly from the manufacturer-seller) must be regulated according to the rules specific to easementsby means of the indication, in specific note specific clauses that prohibit certain activities or prejudices, the generic reference to the condominium regulations contained in the purchase deed not being sufficient.

In the absence of transcription, these provisions of the regulation, which establish the limits to the destination of exclusive properties, are otherwise valid only towards the third party purchaser who specifically acknowledges this in the same purchase contract (Cass. civ., sect. II, 01/25/2024, n. 2403).

The Condominium Against the Vacation Home: What It Must Prove

If the condominium owners consider that, within a condominium building, in accordance with the provisions contained in the conventional condominium regulations, the apartments of exclusive ownership cannot be used as holiday homes and request an assessment to this effect, as well as the cessation of the allegedly undue use, you are in the presence of aact of confession of servitude.

In such a case the plaintiff has a double burden of proof; first, the plaintiff has the burden of demonstrating that the provisions of the condominium regulations prohibiting the holiday home, if pre-established by the original sole owner of the building, were accepted by the condominium owners in the purchase contracts of their respective exclusive properties or in separate specific deeds or if approved by the condominium assembly, have been approved unanimously. Secondly, with respect to third party purchasers, the actor has the burden of demonstrate the enforceability of the right of easementin the sense, that is, of the transcription in the public real estate registers, prior to the transcription of the third party’s purchase deed (which makes no mention of it), of the regulatory provisions that prefigure the activity in question.

Host and holiday home

L’confirmed violation of the ban on opening a holiday home in a condominium legitimises the condominium to request the cessation of the abusive destination both to the tenant and to the landlord, since the condominium owner who has rented his/her own housing unit to a third party is liable towards the other condominium owners for the repeated violations of the condominium regulations committed by his/her tenant if he/she does not demonstrate that he/she has adopted, in relation to the circumstances, the suitable measuresin accordance with the general criterion of diligence former art. 1176 cc, to put an end to the abusesby implementing initiatives that can go as far as request for early termination of the rental agreement (Trib. Rome 10/10/2016, n. 18629).