The story
Two condominiums submitted a regular summons against the condominium, asking the judge to recognize their right, provided for by article 1102 cc, to use two solar pavements adjacent to their apartment. In particular, they want to open two doors-fines that directly connect their apartment to the pavements and create some works as indicated in the project already deposited in the documents. The actors showed that the two solar panels were unused, in an evident state of abandonment, dirty and neglected due to the non -maintenance by the condominium.
The two condominiums asked the assembly to be able to use them, even without exclusivity, to enhance them and make them accessible to everyone. To this end, they presented a project drawn up by their architect who involved the transformation of two windows (one into the room and one in the kitchen) into the doors-fines, to access directly to the pavements from their apartment; the installation, at their expense, of safety railings along the perimeter of the pavements, similar to those already present on the ground floor, with the addition of a gate that can be opened also from the outside, so as to guarantee access to other condominiums; The availability to take charge of all the expenses, both ordinary and extraordinary, relating to the interventions.
The condominium rejected the request with two resolutions. The two condominiums therefore asked the Court that the condominium was obliged to allow them both to access the palasters and the realization of the works envisaged.
The decision of the Court
The Court, after carefully examining the technical and photographic documentation attached to the documents, as well as the conclusions of the office technical consultant (CTU), considered that the solar pavements subject to the case cannot be considered simple common areas freely usable by condominiums. As the Milanese judge noticed, in fact, they are flat roofs of two buildings, one inside the condominium courtyard and the other overlooking an external area used as a parking lot.
These panels, at present, are not accessible or walkable, and perform exclusively the function of covering the units below. The Court highlighted that the project presented by the actors provides for significant interventions: the transformation of windows in doors-fow to access directly to the slabs, the installation of perimeter railings, the creation of a new walkable flooring and other accessory works aimed at a private use of the spaces. According to the Milanese judge, the use proposed by the condominiums would entail an aggravation of the loads on the sun of the these flat roofs, which have not been originally designed to support the continuous presence of people. Structural consolidation works would therefore be necessary, without which the insole would not be safe, nor practicable.
Ultimately, the Court recognized that the proposed intervention is not limited to a more intense use of the common good, as required by article 1102 of the civil code, but substantially modifies its destination. The solar pavements, by simple covers, would be transformed into pertinent terraces for private use, with consequences also on the acoustic level for the units below. For this reason, the Court considered that the intervention cannot be authorized without the consent of the condominium assembly, rejecting the request of the actors.
Moreover, also the transformation of the windows into doors-fines, normally considered lawful, is not legitimate. In this case, in fact, the modification is aimed at an unauthorized use of solar panels, which would be transformed into private and walkable spaces, altering their original function of coverage (Trib. Milan 3 June 2025, n. 4520).
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