Allocation of parking spaces based on thousandths
The regulation of the use of a common space, in the absence of unanimity, must follow the principle of equal enjoyment among all condominiums established by art. 1102 cc, which prevents that, on the basis of the criterion of the value of the individual shares, the right to make use of the property, from a qualitative point of view, different from others can be recognized to some.
Consequentially the assembly decision which provides for the allocation of the parking space is illegitimate based on the thousandth value of each real estate unitsince the share of ownership referred to in Article 1118 of the Civil Code, as a measure of the right of each condominium owner, is relevant in relation to the burdens and advantages of the community, but not in relation to enjoyment, which is presumed to be equal for all. As it’s certainly not possible with assembly resolution give the right to choose parking spaces in the condominium garage – not equivalent to each other for ease of access – starting from the condominium owner of the highest number of thousandths (Cass. Civ., section II, 07/12/2006, n. 26226).
Clause of the regulation that assigns half of the parking spaces to a single condominium owner
A substantive decision declared the nullity of a clause in the assembly regulation which assigned half of the available parking spaces to a single condominium owner, as it attributed greater rights on the use of common property (Court of Brescia 8 November 2023 n. 2847).
If the regulation is not limited to the regulation of the use of common things in accordance with the rights of individual condominium owners, but sets rules which, by affecting individual rights, result in an alteration – to the advantage of some of the participants and to the detriment of others of the extent of enjoyment that each condominium owner has based on their share – no modification can be permitted without the unanimous consent of all participants in the condominium (Cass. Civ., section II, 08/11/2004, n. 21287).
Assignment of reserved parking space
It is common ground that condominium relations must be informed to principle of solidarity (and respect for elementary rules of behavior), which requires constant balance between the needs and interests of all participants in communion.
From this perspective, the interest of the individual condominium owner is paramount in the removal of obstacles that stand in the way of overcoming situations of inequality and, therefore, in the clear aim of balancing the rights of all condominium owners to use the common goods, priority must be given to those among them who, finding themselves in conditions of reduced motor capacitymust benefit from spaces and services that allow them to easily reach their home in conditions of adequate autonomy.
Consequently, the appeal against a resolution with which the assembly had accepted the request of a co-owner to be able to use a reserved space for parking her car near the entrance door to her home in consideration of the serious disability of a cohabiting family member (Trib. Rome 27 July 2022 n. 12021). Please note that the same law no. 13/1989 provides for theelimination of architectural barriers in newly constructed private buildings through the creation of parking spaces reserved free of charge for vehicles serving disabled people placed near the access to the building and designed to encourage mobility: in this case, it is the law that recognizes this right.
Assignment of parking spaces and apartment subdivision
The assembly of a condominium decided to exclude the owner of the apartment resulting from the subsequent subdivision of a property from the assignment of a parking space. A co-owner considered this decision null or voidable pursuant to art. 1137 cc because it did not take into account previous sentences which had annulled previous similar resolutions. The Court agreed with the plaintiff, holding the exclusion is illegitimate of the plaintiff from the right to benefit from the common good, a decision requiring unanimity of consensus, noting that the plaintiff’s real estate units had been, at least in part, obtained from real estate subdivisions. The Court of Appeal confirmed the decision of the judge of first instance, fully accepting the defenses presented by the original plaintiff.
So, if the subdivision of an apartment is not prohibited by a contractual provision of the regulation, the resolution that excludes the owners of the subdivided real estate units from the use of the common courtyard is not lawful (App. Naples 15 April 2024 n. 1625).