Usufructuary in condominium: distribution of expenses
After the so-called condominium reform the situation is as follows: the usufructuary and the bare owner are liable jointly for the payment of contributions due to the condominium administration (article 67 provisions of the Civil Code, paragraph 8), so that the administrator can demand condominium charges from both. Therefore solidarity binds the usufructuary also for those expenditure items whose approval is left to the naked owner.
Paragraph 6 of article 67 disp. att. cc allowed the holder of the real right of enjoyment, through his own vote at the meetingOf exercise the right to replace the naked owner in the execution of those works due to him but refused by him or, in any case, carried out late.
In any case, in the internal relationship between one and the other, however, the owner of the usufruct is responsible for administration and ordinary maintenance costs, while those for extraordinary repairs are borne by the naked ownerthe provisions dictated by articles 1004 and 1005 of the civil code applying
Usufructuary and action for compensation for damage from infiltration: a recent story
The usufructuary of a condominium real estate unit complained about the presence of infiltrations in the premises he owns, coming from the terrace abovethe exclusive property of another condominium owner, caused by the detachment between the collection well and the drainpipe, as well as by the condominium drainpipe/fecal pipe and by the absence of protective plinth.
The injured party sued the owner of the terrace and the condominium body to request the condemnation of compensation for damages borne by the defendants. The latter, however, objected to the lack of active procedural legitimacy since the plaintiff was a mere usufructuary of the damaged property. Therefore they asked for a declaration of lack of active legitimacy and alternatively, on the merits, they asked for the application to be rejected. Basically the owner of the terrace and the condominium they believed that active legitimacy did not belong to the usufructuary, but to the bare owner.
The Court recalled that there is no reason to deny the usufructuary autonomous legitimacy to act, pursuant to theart. 2043 cc, for compensation for damage caused by a third party to the property subject to his rightand therefore, directly or indirectly, to his right of enjoyment, and this because, if the usufructuary has the right to enjoy the thing (art. 981 cc) in its integrity, there is no reason to deny him the right to act also with the general Aquilian action, against anyone who, by attacking the integrity of the property, causes the unjustified damage to its enjoyment (Trib. Avellino 16 September 2024 n. 1586).
Usufructuary and damage from infiltration to third parties
AND guardian is the one who has actual material power over the thing. The art. 2051 cc, in qualifying whoever has custody of the item is responsible for damages caused by this, identifies a criterion for attributing responsibility that is independent of any connotation of fault, so that it is the injured party’s responsibility to allege, by providing proof, the causal relationship between the thing and the harmful event, regardless of whether or not it is dangerous or the intrinsic characteristics of the former.
The caretaker’s responsibilityfor damage caused by the thing in his custody, is excluded only when these demonstrate the “fortuitous case“, to be understood as an event that could not have been foreseen in any way or, if foreseeable, could not have been prevented.
The liability caused by things in custody falls on the person who has full control of the thing, with the consequence that, where the res is in the possession of a usufructuary, he is liable as holder of the custody (Cass. Civ., section III, 05/07/2004, n. 12280; Cass. Civ., sec. I, 01/03/1995, n. 2301). This conclusion derives from the circumstance that the assumption of the invoked responsibility lies in the normal condition of “power over the thing”which – as a reflection of a legally relevant situation with respect to the res – is such as to make the aforementioned power actual and direct through a de facto lordship over the thing of which one has material availability, so that it postulates the quality of owner of the thing which gave rise to the harmful event which has the actual enjoyment of it or, in any case, of a third party required by law to provide for its ordinary and extraordinary maintenance (Cass. Civ., section III, 02/12/2021, n. 38089).