Proof that a stretch of road belongs to the condominium: the story
A condominium sued a Municipality to obtain the assessment, pursuant to art. 949 cc, ofnon-existence of real rights allegedly boasted by the defendant on a road access section of the building which the plaintiff believed to be part of the common courtyard.
The condominium also requested the Court to order the defendant to cessation of disturbances and nuisances on the indicated road sectionconsisting, among other things, in the adoption by the Municipality of the provision for cancellation and revocation of the DIA, relating to the installation of two metal bars on the aforementioned road, which was followed by the adoption of an ordinance with which on the Municipal Authority ordered the relevant demolition and the restoration of the state of the places. These administrative acts, according to the plaintiff’s view, were incurable flawed due to the fact that the Municipality claimed that the stretch of road at issue wasactually, a municipal road.
Please note that the condominium with the action in question (so-called servitutis denial) must prove, by any means, the right to purchase the property so that the judge, having verified his active legitimacy, can ascertain the non-existence of minor real rights on the property itself by others allegedly claimed and, if necessary, order the cessation of the harassment or disturbances suffered by the person who claims to be the owner. In this regard, the condominium community argued that the ownership title of the disputed area was constituted by the condominium regulation drawn up by the owner-builderdrawn up by the notary and available at the city’s real estate register. This document in the art. 5 he mentioned two transversal private roads among the things of common property.
The condominium regulation is not a property title
As mentioned, the condominium owners would have had to prove, in the face of the dispute of ownership by the defendant body, that the road section in question falls within the common court of the condominium. The Court ruled against the condominium.
First of all, he observed that, from the fragment reported in the regulation, it is not possible to establish which of the private roads is being referred to. In any case it has excluding that the condominium regulation can constitute the title to purchase a surface area and prove the relative ownership (Latin Tribunal 12 July 2024, n. 1531). For the purposes ofverification of belonging to the condominium of funds located in a separate area with respect to the building in which the condominium apartments are located, no importance should be attributed in this regard to the condominium regulation, as it does not constitute a title of ownership (Cass. Civ., section II, 20/03/2023, n. 7917) .
The disputed stretch of road was not condominium. Moreover, as the judge underlined, the road in question was the subject of transit until 2001 and, therefore, for approximately thirty years (from the end of the 1960s, the time of its presumed construction). Furthermore, as reported by the administrator, even after the installation of the bars by the condominium owner, pedestrian transit has never been prohibited. More in detail, the installation of the bars was carried out in such a way as to leave a pedestrian passage free. It follows, therefore, that pedestrian passage through the crossroads was never prevented. The dominion of the crossbar was therefore controversial, as the actor did not prove, even through presumptions, of a valid title to purchase the street.
For the above, excluding the active legitimacy of the plaintiff, the Court rejected the request for verification of the non-existence of real rights by the Municipality on the disputed area. The plaintiff’s request aimed at obtaining an order from the Municipality to cease the disturbances allegedly suffered by the condominium was also rejected.
