Presumption of common ownership of the attic, special cases
If the ceiling is formed, in addition to the slab, by beams that protrude underneaththe latter are also common property, when they do an integral part of the slab and ceiling and perform the same function of inseparably forming the dividing structures of the two apartments; the beams, on the other hand, are the exclusive property of the owner of the floor below, when they constitute only a mere ceiling decoration.
In any case it was clarified that, in terms of overlapping floors of a building belonging to different owners, the full or empty spaces that access the ceiling or floor and are not essential to the dividing structure remain excluded from the communion and can be used respectively by each owner in the exercise of his full and exclusive dominion right; but, once the condominium nature of the empty space existing between the attic and the false ceiling is excluded, there is a stripped to the detriment of the possession exercised by the owner of the underlying propertywhen the owner of the apartment above places pipes and ducts underneath the support boards of your floor beams (Cass. Civ., section II, 11/06/2018, n. 15048). Since the presumption of condominium concerns the attic and not also the full or empty space it occupies, the owner of the apartment above is not allowed to limit or restrict the exclusive ownership of the one below by occupying the empty spaces: the “installer” condominium must be therefore sentenced to removal of installed pipesas well as the execution of all the works necessary for restoration of the status quo antehowever in the case in question there is no hypothesis susceptible to evaluation from the point of view of limitation; the action, with which the condominium of a building requests the removal of works that a condominium has carried out in its real estate unit has a real nature and, therefore, is not susceptible to prescription since it expresses the power inherent in the right of property (Trib. Rome 27 April 2022 n. 6256).
Use and expenses
As regards use, the attic dividing the two overlapping housing units, forming a common structure, it can be modified by the owners of the two units only on condition that its destination is not altered and that the other is not prevented from making equal use of it according to his right (Cass. Civ., section II, 22/08/1994, n. 7464). In consideration of its function theart. 1125 cc provides that the costs for maintenance of the ceilings are borne in equal parts by the owners of the two floors, remaining the floor covering is the responsibility of the owner of the upper floor and the plaster, paint and decoration of the ceiling are the responsibility of the owner of the lower floor (Court of Torre Annunziata 3 May 2024 n. 1294).
Compensation for damages
The criterion for allocating expenses for the maintenance and reconstruction of ceilings, vaults and attics according to the criteria of the art. 1125 cc, concerns the cases in which the need for repairs is not attributable to any of the condominiums, while when the damage is attributable to individual condominiums, the general principle according to which compensation for damages is borne by the person who caused them (Civil Cassation, section II, 08/09/2011, n. 18420).
In order to obtain compensation for damage to the attic, a rigorous procedure must be complied with evidentiary burden which requires the owner of the underlying real estate portion to demonstrate, pursuant to art. 2043 cc, that the damage to the attic depends on facts attributable to the condominium owner on the floor above. Thus, for example, in cases in which the attic requires repairs because the beams have been damaged by extensive infiltrations deriving from the apartment located above it, the distribution of beam costs is the responsibility of the owner of the apartment above, who will have to make burden of the intervention costs, including not only the costs of resurfacing your floor but, if necessary (think of the case in which infiltrations have ruined the ceiling paint), also the costs of plastering the ceiling below the attic (Cass. Civ., Section II, 08/09/2011, n. 18420).
They cannot then be ruled out infiltrations coming from the faulty condominium roof that for the poor state of maintenance of the attic flooring spreads to the floor below: in this case the damages are attributable to the condominium and to the condominium owner of the attic.
