The Condominium’s liability for damages caused by water infiltration is a delicate issue and often the subject of legal disputes.
Recently, the Court of Naples issued an important ruling (no. 7535 of 28 July 2022), establishing that the condominium is required to compensate the owner of an apartment for damages caused by infiltrations coming from the condominium roof, even in the presence of exceptional weather conditions, such as a “water bomb“.
This raises a fundamental question: can exceptional rainfall exempt the condominium from liability?
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The sentence: infiltration and responsibility of the condominium
The case dealt with by the Court of Naples involved an owner of an apartment in a condominium asking for compensation for damages suffered due to water infiltration from the condominium terrace. Although the Justice of the Peace had denied compensation in the first instance, attributing the cause of the damage to an extraordinary intensity of rain (defined as a “water bomb”), the owner decided to appeal the decision.
According to the Court, the infiltrations could not be considered a fortuitous event, since the event had been foreseeable. The owner, in fact, had previously reported to the Condominium the poor slope of the drainage water on the terrace, making the potentially damaging situation already known.
From here, the Court recognized that the heavy rain did not exempt the condominium from its liability for failure to maintain custody.
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The principle of objective liability of the condominium
The decision of the Court of Naples is based on the principle of strict liability of the condominium, as regulated by art. 2051 of the civil code. According to this rule, the condominium is considered the “custodian” of the common areas, such as the roof or the terrace, and is liable for any damage that such areas may cause to people or things.
Article No. 2051
Damage caused by thing in custodyEveryone is responsible for damage caused by things in their custody, unless they prove that it was a fortuitous event.
In detail, strict liability is not based on the behavior of the custodian, but simply on the fact that there is a custodial relationship between the common part and whoever has control over it. In other words, the condominium is responsible for damages arising from the common parts, regardless of its fault or negligence.
The Court’s ruling also recalls an important precedent in jurisprudence, the ruling of the United Sections of the Civil Cassation Court no. 12019/1991, which establishes that the custodian’s liability can be excluded only in the presence of a fortuitous eventthat is, an external, unpredictable and inevitable event, which escapes the control of the custodian.
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The fortuitous event: when can it exclude the condominium’s liability?
The concept of fortuitous event is essential to understand when the condominium can be exonerated from its liability for damages caused by the common areas. As defined by art. 2051 of the Civil Code, a fortuitous event is a unpredictable and unavoidable event which excludes the custodian’s liability. It may be a natural event, such as an earthquake, or human behavior beyond the custodian’s control.
In this specific case, the condominium attempted to invoke the fortuitous event by claiming that the “water bomb” that hit the city was an exceptional and unforeseeable event. However, the Court of Naples ruled out that atmospheric precipitation, however intense, could be considered an extraordinary and inevitable event that would free the custodian from his responsibility.
Indeed, the Court stressed that the intensity of the rain was not sufficient to exclude liability, since the damage was foreseeable and linked to a already known defect of the structuresuch as the poor slope of the drainage water.
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The decision of the court of Naples: compensation to the owner
In light of the evidence provided, including photographs and testimoniesthe Court of Naples with ruling no. 7535/2022 held that the damage suffered by the owner of the apartment was actually caused by infiltrations coming from the condominium terrace.
The condominium, while admitting the presence of infiltrations, tried to defend itself by claiming that the responsibility was attributable to the exceptional rain. However, the Court rejected this defense, stating that the “water bomb” could not be configured as a fortuitous event capable of freeing the condominium from its responsibilities.
As a result, the claim for compensation was granted, and the condominium was ordered to pay 2,000 euros in damages to the owner, as well as an additional 2,000 euros for legal costs.
