The story
The story was divided into two distinct judgments, then gathered. In the first cause, the actress cited only the condominium, asking for compensation for damages for infiltrations that took place in 2014 and the reimbursement of the expenses incurred to repair the underbole. The condominium called the owners of the projecting balcony above. In the second judgment, as mentioned then brought together to the first, the actress directly cited both the condominium and the owners of the balcony, complaining of other infiltrative phenomena that occurred shortly after.
The defendants called their insurance company under warranty and proposed reconventional application, asking for the removal of an abusive false ceiling installed by the actress under their balcony and compensation for damage up to 1,000 euros. During the first degree process, there were at least two causes of such damage: the presence of the false ceiling, that is, an additional structure installed under the balcony, which may have contributed or aggravated the problem; The rainfall.
The Justice of the Peace of Naples recognized the solidarity responsibility of the condominium (pursuant to art. 2051 cc, as custodian of the common parts) and the owners of the above balcony, due to omitted diligence in the maintenance of the stretch of pluvial located in correspondence with their properties. The judge then sentenced all the defendants to compensate the damages suffered by the actress, in addition to the interests and legal costs. The reconventional application proposed by the spouses – presumably aimed at removing the false ceiling or compensation for damages – was fully rejected, since the judge deemed not proven that this ceiling, carried out in the actress’s apartment in correspondence with the infiltrations from the above balcony, had caused the breakdown of the rain column contained in it.
The decision of the Court of Appeal
The Court overturned the first instance decision, highlighting that during the inspections only the damage to the plasterboard panels placed at the intrados of the balcony in correspondence with the rainfall emerged. According to the appeal judge, it was not proven that the false ceiling, made in the actress’s apartment and anchored to the balcony of the defendants, was damaged by a conduct attributable to the owners of the upper floor. Indeed, it has been observed that this structure could not be legitimately anchored to an asset of exclusive property of others (the balcony), and that its presence has if anything hindered the maintenance of the rain column. Therefore, the damage to plasterboard panels was not considered “unfair” and the compensation demand against the owners of the balcony and the condominium has been revoked.
Conclusive reflections
According to a shareable and peaceful jurisprudence of legitimacy, the arranging balconies constitute only an extension of the apartment from which they extend and, not performing any function of support or necessary coverage of the building, cannot be considered at the service of the overlapping plans and, therefore, common ownership of these plans; The arranging balconies, therefore, fall within the exclusive property of the owners of the apartments they access (Cass. Civ., Section II, 27/07/2012, n. 13509).
Therefore, also in relations with the owner of analogous artifact that is placed on the floor below on the same vertical, in the event of completely rescuing structures – it cannot speak of an element at the service of both properties placed on plans above, nor therefore of presumption of common ownership of the projecting balcony referred to the owners of the individual plans (Cass. Civ., Section II, 30/07/2004, n. 14576). The underboxy, if it is not decorative, therefore belongs to the owner of the balcony.
In the light of the above, the appeal judge correctly observed that, being the insole of the advertising balcony of exclusive property, the owner of the underlying accommodation could not legitimately anchor the ceiling (for a similar case: court Rome 21 April 2022, n. 5971). This conduct integrates a culpable behavior of the creditor, who contributed to the production of the damage: in the absence of the false ceiling, in fact, the damage would not have occurred, or at least the structure would not have suffered injuries. Although it is not the cause of the breaking of the rain column, its presence has still made the maintenance of the system more difficult.
