The roof of a condominium building is an element of fundamental importance, both from a structural and functional point of view. However, there are situations in which the roof may not be considered condominium, but the exclusive property of a single condominium owner.
What are the criteria for determining whether the roof is common or exclusive property? And what are the legal implications for condominiums?
In this article, we will examine how to determine when the roof is not condominium, analyzing the regulations and situations that can lead to this classification.
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The reference legislation
Roof ownership is generally governed by the Italian Civil Code, in particular by theArticle 1117which lists the parts of the building considered to be common property. The roof, as an essential part for the covering and protection of the entire building, is usually included among these. However, there are exceptions that must be carefully evaluated.
Article 1117 of the civil code
Common areas of the buildingThe following are the subject of joint ownership of the owners of the individual real estate units of the building, even if they have the right to periodic enjoyment and unless the contrary is stated in the title:
1) all parts of the building necessary for common use, such as the ground on which the building stands, the foundations, the load-bearing walls, the pillars and beams, the roofs and flat roofs, the stairs,
the entrance gates, the vestibules, the passageways, the porticos, the courtyards and the facades;
2) the areas intended for parking as well as the rooms for shared services, such as the concierge, including the concierge’s accommodation, the laundry, the drying rooms and the attics intended for the
structural and functional characteristics, for common use;
3) works, installations, and artifacts of any kind intended for common use, such as elevators, wells, cisterns, water and sewage systems, centralized distribution and transmission systems for gas, electricity, heating and air conditioning, radio and television reception and access to any other type of information flow, including satellite or cable, and the related connections up to the branch point to the premises of individual ownership of the individual condominium owners, or, in the case of single systems, up to the point of use, except as provided for by the sector regulations regarding public networks.
One of the main situations in which the roof can be considered exclusive property is when it serves only a single real estate unit. For example, if an apartment on the top floor has direct and unique access to the roof, and this is used as a terrace or roof garden, it could be considered exclusive property of the owner of the apartment itself.
Additionally, the intended use and modifications made to the roof can influence its classification as a common or exclusive part.
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Criteria for establishing roof ownership
Determining whether the roof is owned by a condominium or exclusively requires a careful analysis of various factors. Among the main criteria to consider are:
- Intended use: If the roof has the primary function of protecting the entire building, it is generally considered condominium property. However, if it is intended exclusively to serve a specific real estate unit (such as a penthouse with private access), it may be considered exclusive property.
- Structure and accessibility: A roof that is easily accessible only from a specific dwelling unit, such as an attic or a rooftop, may be classified as exclusive. The presence of private internal stairs or other structures that directly connect the roof to an apartment is a significant clue.
- Contractual agreements: The presence of written agreements between the condominium members, or specific clauses in the condominium regulations, can clearly establish the ownership of the roof. It is important to check these documents to understand the provisions regarding this matter.
These criteria are essential to correctly determine the ownership of the roof and to avoid conflicts between condominium owners.
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Relevant rulings on roof ownership
Italian jurisprudence has addressed the issue of ownership of the roof in condominiums several times, clarifying some crucial aspects.
One of the most significant rulings is the Civil Cassation, Section II, Sentence no. 1455 of 20 January 2014which established that, in the absence of evidence to the contrary, the roof of a building is to be considered a condominium, even if access is reserved for a single condominium owner. The ruling clarified that the primary use of the roof is to protect the entire building and not just the part accessible by a single condominium owner.
Another important ruling is the Civil Cassation, Section II, Sentence no. 8084 of 4 April 2013which stated that the exclusive ownership right over a portion of the roof can be recognized only if there is a valid title that demonstrates exclusivity. In the absence of such a document, the roof must be considered a common part of the condominium, with the related implications regarding maintenance and use.
These rulings underline the importance of having clear documentation and regulations within the condominium to avoid disputes and ensure proper management of the common areas.
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Legal and practical implications
Establishing who owns the roof of a building has important consequences, both legally and practically. If the roof is owned exclusively, the owner can use it as he wishes, in compliance with the laws and the condominium regulations, but must also support all the expenses for its maintenance and any repairs.
Instead, if the roof is shared, the maintenance costs are divided among all the condominiums according to the thousandths tables. For this reason, it is essential that each condominium owner knows his rights and duties regarding the roof.
In addition, any work on the condominium roof requires the approval of the assembly. If there are disputes over ownership of the roof, mediation can be used or, if necessary, legal action, during which a judge will examine all documents and evidence to decide who owns the roof.
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Conclusion
In summary, determining ownership of the roof of a condominium building is a complex issue that requires careful consideration of several factors, including the intended use, the structure of the roof, contractual agreements between the condominium owners, and case law.
Understanding whether the roof is owned exclusively or jointly by the owner not only affects the management of maintenance costs, but also the rights of use and legal responsibilities of the condominium owners involved.
It is therefore essential, to avoid conflicts and ensure proper management of the condominium, that each condominium owner knows the rules and regulations that govern ownership of the roof.
