Thesis in favor of the partial transformation of the roof
Starting from a decision of the Supreme Court (Cass. Civ., section II, 03/08/2012, n. 14107), jurisprudence has begun to distance itself from the traditional approach which always considered the transformation of a portion of the roof into a terrace for exclusive use to be illicit. It has been stated that such an intervention can fall within the scope of the modifications permitted by the art. 1102 cc, provided that the work does not significantly alter the overall consistency of the roof, does not compromise its function of protecting the building and is carried out with techniques suitable for guaranteeing waterproofing, insulation and continuity of the shelter function (Cass. Civ., section VI, 07/01/2022, n. 290; App. Milan 15 January 2025, n. 65).
A recent substantive decision deemed a small pocket terrace to be fully lawful when the intervention affects a very minimal portion of the pitch (in the case examined approximately 10.7 m2) and does not alter the essential roofing function or compromise the stability of the building. The technical verification excluded infiltrations and worsening of the thermal insulation, while the position embedded in the pitch, invisible from the public road, excluded any damage to the architectural decoration. It was also ascertained that the remaining coverage remains fully usable by the other condominiums, also with a view to future common uses, thus confirming the compatibility of the work with the limits of the most intense use permitted by the art. 1102 cc (Trib. Nocera Inferiore 1 June 2026, n. 1444).
In any case, the assessment of the significance of cutting the roof, the adequacy of the works and compliance with the roofing function is left to the judge of merit, but must be carried out in light of the criteria developed by the most recent jurisprudence (Cass. Civ., section II, 29 January 2021 n. 2126).
Condominium roof, the Court of Cassation changes course: the pocket terrace can be bare
Recently the Supreme Court of Cassation (Cass. civ., section II, 21 May 2026, n. 15515) dealt with a controversy that arose from the request proposed by a condominium owner on the fifth floor, who complained that the owner of the apartment above had transformed a portion of the condominium roof into a terrace for exclusive use, removing it from common enjoyment.
The plaintiff acted in a possessory manner, pursuant to articles. 1168 and 1171 cc, requesting the suspension of the works and reinstatement of possession of the roof. The Court, in the defendant’s absence, accepted the request with an order, then confirmed in the complaint, and subsequently with a final sentence ordered the restoration of the state of the premises. The Court of Appeal rejected the appeal of the owner of the top floor, deeming the deprivation of the common good proven.
The position of the judges of first and second instance was confirmed by the Supreme Court. Recalling a consolidated orientation, the Court reiterated that the roof falls among the common goods pursuant to art. 1117 cc and that each condominium owner exercises joint ownership pro indiviso. When one of them unilaterally modifies the roof, replacing it with a terrace intended for their exclusive use, there is a subtraction of the common good from its original function and a compression of the enjoyment of others, sufficient to integrate the spoil.
In the opinion of the supreme judges, in the concrete case, the creation of a private terrace entailed a material replacement of the roof and a definitive subtraction of the portion of the roof from common enjoyment, fully integrating the spoil. If the dispute concerns the legitimacy of the work, the judge applies the art. 1102 cc: it is assessed whether the pocket terrace respects the roofing function, does not compromise stability and decorum and does not remove the roof from the use of others. In this area, the most recent jurisprudence has allowed minimal and technically correct interventions, such as the one which affected only 10.7 m2.
If, however, possession is discussed, as in Cass. 15515/2026, the criterion changes completely: it is enough for the condominium owner to demolish even a part of the roof and transform it into an exclusive terrace to integrate the bare property, regardless of the technical quality of the work or its possible legality on the petitionary level.
At present, the transformation of the roof does not therefore seem practicable without the consent of the other condominium owners.
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