The ruling of the Court of Cassation n. 32707 of 16 December 2024 addressed a topic of great importance in condominium law: theillegitimate occupation of a communal garden by a contractor during the execution of extraordinary works.

The central issue revolves around the company’s right to temporarily access a private area for technical reasons and the possibility of having to pay compensation to condominium owners for the temporary deprivation of their right to use the area.

How do you balance operational needs with the protection of property rights? What are the rights and obligations of a condominium owner in similar cases?

Read on to find out the details of this important pronunciation.

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The legal case and the litigation

The dispute originates from the execution of extraordinary works commissioned by the condominium for interventions maintenance and redevelopment of the buildingincluding structural interventions and renovation of common parts. During the course of the works, the contractor had temporarily occupied the communal gardenpreventing residents from using it for a significant period.

This limitation was motivated, according to the company, by the need to place materials, equipment and create a safety area for carrying out the activities.

The condominium owners, however, considered the occupation excessive and not proportionate to the technical needs. In particular, access to the green area had been denied without adequate prior communication and without a detailed plan justifying the temporal extension of the occupation.

Some condominium owners reported that the garden had remained unusable for longer periods than necessary, limiting access even after the conclusion of specific operational phases.

Following these circumstances, the condominium owners took legal action against the company, requesting not only the immediate removal of the occupation, but also a compensation for damages for the temporary deprivation of the right to use the common area. The contracting company, for its part, supported the legitimacy of the occupation, invoking art. 843 of the Civil Code, which regulates access to other people’s funds for the execution of necessary works, and believing that any financial compensation should be limited to an employment allowance and not actual compensation.

Article no. 843.
Access to the fund

The owner must allow access and passage to his land, provided that the need is recognised, in order to build or repair a wall or other work belonging to the neighbor or municipality.
If access causes damage, adequate compensation is due.
The owner must also allow access to anyone who wants to take back their property that accidentally finds itself there or an animal that has taken refuge there and escaped custody. The owner can prevent access by handing over the item or animal.

A long procedural process followed, which initially saw the Court of Naples issue an injunction for payment of the works, which was then opposed by the condominium with a request for revocation based precisely on the illegitimacy of the prolonged occupation. The matter finally ended with the appeal to the Supreme Court, which led to the sentence of 16 December 2024.

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The decision of the cassation

The Court of Cassation, with the sentence no. 32707 of 16 December 2024addressed in detail the issue of the temporary occupation of a condominium area, clarifying some fundamental principles regarding condominium law and the execution of extraordinary works.

The Court established that the occupation of a private area, such as the communal garden, can be considered legitimate only if it is strictly necessary for the execution of the works and if the contractor complies with specific criteria of proportionality and correct information to the condominiums. In particular, the Court of Cassation underlined how technical necessity does not automatically exclude the right of condominium owners to obtain financial compensation for the temporary deprivation of the common good.

The ruling also highlighted that:

  • Prior notification obligation: The company is required to formally inform the condominium administrator and, indirectly, the condominium owners about the need to occupy the area, specifying the reasons and duration.
  • Proportionality of employment: Employment must be limited to the time strictly necessary for carrying out the work and must be justified by documentable technical needs.
  • Employment allowance: The Supreme Court has clarified that, even in the case of legitimate employment, condominium owners are entitled to financial compensation for the temporary deprivation of the right to use the common area, by way of financial compensation and not compensation for damages.

The established principle is therefore that the access and temporary occupation of a condominium area, although justified by work needs, must take place in compliance with the property rights of the condominiums and with the provision of compensation for the temporary sacrifice of the enjoyment of the property. common thing.

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Principle of indemnity and non-compensation

One of the most relevant aspects clarified by the ruling concerns the distinction between employment allowance And compensation for damages. The Court of Cassation clarified that, in the case of temporary occupation of a condominium area for work needs, there is no automatic compensation for damage, but rather an indemnity due to the condominium owners for the temporary limitation of their right to use the common area. .

What does this mean in practical terms?

Indemnity, unlike compensation for damages, does not require demonstration of actual damage or direct economic damage. It is due to the simple fact that the condominium owners, due to occupation, were not able to use the communal garden during the period of the works. This principle is based on damage in re ipsai.e. a prejudice that automatically derives from the deprivation of the good, without the need for further proof.

Differences between indemnity and compensation:

  • Employment allowance: Due for the sole reason of the limitation of the use of the area, even in the absence of concrete damage.
  • Compensation for damages: Requires proof of actual damage, such as deterioration or loss of value of the property.

The Court also reiterated that, in similar circumstances, the main regulatory reference is thearticle 843 of the Civil Codewhich regulates access to other people’s land to carry out necessary work, requiring compliance with the principles of temporariness and necessity.