The story
The owner of an apartment that was part of a condominium turned to the Liguria Regional Administrative Court asking for the annulment of the Municipality’s provision which, pursuant to art. 19, paragraph 3, L. 241/1990, prohibited her from continuing the construction activity started with SCIA. The intervention concerned the creation of a cantilevered balcony on an existing French window, considered detrimental to the architectural decoration of the facade and without condominium consent. In support of the appeal, the condominium owner complained, among other things, about the violation of the condominium regulations (articles 1102, 1117, 1120, 1122 of the civil code).
The Court held that the construction of the balcony affected the architectural decorum, a common good, and that the Municipality had the power to verify the truthfulness of the declarations contained in the SCIA, including the ownership or consent of third parties.
The condominium owner appealed the sentence, arguing, in short, that the judge of first instance had not taken into account the favorable opinion already expressed by the condominium and that the building intervention (transformation of a window into a balcony) fell within the scope of the art. 1102 cc, not constituting an innovation pursuant to art. 1120 cc, and therefore did not require assembly authorization. He also contested the jurisdiction of the TAR over the evaluation of architectural decoration, stating that the Municipality had exceeded its competences. Finally, he denied that the balcony was visible from the public road and underlined that the aesthetic uniformity of the building was already compromised by pre-existing symmetry defects.
The decision of the Council of State
The Council of State agreed with the Municipality. The judges of second instance found that the work was intended to visibly affect the main facade, characterized by recessed balconies, altering the aesthetic imprint of the building. According to the Council of State, any intervention that affects architectural decorum (common good) requires the consent of the assembly, regardless of the subjective judgment on the aesthetic effect.
New projecting balcony and architectural decoration
The construction of a cantilevered (i.e. projecting) balcony may incur the limit represented by the architectural decoration. Even if the interested party believes that the modification (such as the addition of a balcony or the opening of a window) does not alter the architectural decoration of the building, he cannot act independently if the intervention substantially affects the facade. In other words, it must be considered that the “architectural decoration” of the facades constitutes the common good of the building and, therefore, any work that significantly affects it requires the consent of the condominiums’ assembly, regardless of the judgment on the aesthetic result of the planned works (State Council, Section IV, 26 June 2012, n. 3772; Cass. II, 30 August 2004, n. 17398)” (see State Council, Section II, n. 8663 of 30 October 2024).
Any modification that visibly changes the external appearance of the building (such as the facade) requires the consent of the condominium assembly, even if the condominium owner thinks it is a “minimal” or “irrelevant” modification. It is not up to the individual to evaluate the aesthetic impact: it is the assembly and, in case of dispute, the judge who establishes whether the intervention alters the decorum.
From this perspective, article 1122 of the civil code allows the individual condominium owner to intervene on his property, even creating a balcony, with the sole obligation of giving prior notice to the administrator, so that he can report it to the assembly. This is possible only if the work does not cause damage to the common areas and does not jeopardize the stability, safety or architectural decoration of the building.
In any case, individual condominium owners cannot escape the obligation deriving from clauses of the regulation of a contractual nature which require them to request the prior authorization of the assembly to carry out any work on the common things or on the exclusive parts: the modifications made in violation of the condominium regulation make such works abusive and prejudicial and constitute the interest of the other participants in the condominium to act to protect the common property.
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