“Condominii ” (condominiums) are a copious source of litigation in Italy. Several people / families living close together in blocks of flats are a continuous source of stress and disputes. Even the 2012 reform of Italian condominium legislation and the 2013 special mediation procedure introduced as a compulsory preliminary to any condominium litigation, cannot stem the flow of court proceedings.
Some recent Judgements of the Italian Supreme Court (Cassazione ) provide guidance, in some new and unusually grey areas.
Basement escavations – Even if on a lower scale, when compared with London`s West End, the premium on space has seen interest in basements soar in Italy. Subject to planning regulations, the unused area under the ground floor, if excavated, may result in new parking / storage space or even new living space.
In March 2016 the Italian Supreme Court was asked, among other matters, to adjudicate on excavations, carried out by one of the co-owners (Russo Giuseppe & C ) into the subsoil owned by a “Condominio di Via Palladio”, without the permission of the other co-owners. The facts of this case were rather unusual, because the excavations had been carried out under a detached outbuilding used as a garage, not under the main block of flats.
Unless otherwise provided in the relevant title deeds, the Italian Civil Code includes the soil on which the block of flats is erected, the foundations, the main load bearing walls etc. among the common parts of a condominium.
Condominio di Via Palladio applied to the Courts for an order that Russo Giuseppe & C should be ordered to reinstate the affected area. For short, to fill up the excavated area under their garage, and pay damages.
Russo Giuseppe & C defended this claim stating that there was no provision in their title deed preventing excavations. Also, no damages had been caused to the other co-owners. The excavations had been carried out not
under the main block of flats, but under a detached building, their garage.
Condominio of Via Palladio was able to prove that, although there was no mention in the title deeds, the Condominium regulations (Regolamento condominiale), clearly stated that all the subsoil, both under the main
block of flats and under the detached garage excavated by Russo Giuseppe & C, was jointly owned.
In view of this, all co-owners were entitled to use the subsoil, without preventing the other co-owners from doing the same.
The Italian Supreme Court rejected the appeal of the excavators (Russo Giuseppe & C), and confirmed the judgments of the lower Courts, which resulted in an order that Russo Giuseppe & C should fill up the area that had been dug out, under his detached building.
Loss of entitlement to parking spaces – Parking is a serious problem in all Italian cities. Frequently the area available for vehicles` circulation on the main streets of metropolis like Rome, Milan or Naples lined with tightly parked cars on both sides of the road, is less than halved. In some cases, cars are even double parked, the space available for ordinary traffic being further reduced.
In order to mitigate this problem, 1967 Italian legislation, provided that for every stated volume of new building erected, a number of parking spaces had to be created. This was and is, a matter of public policy, it cannot be derogated by private agreement, the parking spaces cannot be disposed of or used for other purposes.
In November 2016, the Italian Supreme Court issued a judgment in a dispute over parking spaces. Here, the builder of a block of flats in Salerno, expressly withheld some parking spaces created at the time the new condominium / block of flats was erected. As the builder sold the individual flats to private owners, he kept the use (not the ownership) of some of the parking spaces for himself. For a long time, the members of the Condominio (Mr Pinto Marcello and others) did not take any steps to enforce their parking rights over these spaces, in their grounds.
Well over 20 years later, the condominium took the Estate of the late original builder (Mr Sansone Silvio, Angelo and Giuseppe ) to court, applying for a declaration that they, the condominium and not the original builder`s Estate, were entitled to use the parking spaces in question. The Estate of the deceased builder defended this claim, in their turn claiming exclusive entitlement to use the parking spaces in question.
The local courts rejected the condominium`s claim, on the basis that the lack of use for over 20 years had resulted in the loss of the right to use car park spaces in question. The original builder first and his Estate later had, over the years, acquired the exclusive right to use the parking spaces. This dispute was eventually referred to the Italian Supreme Court.
Cassazione (Italian Supreme Court) confirmed the earlier rulings of the lower courts. The condominium had lost their entitlement to the parking spaces, through their lack of use / lack of enforcement over a protracted period of time.
The statutory parking spaces requirement, applicable to all new build, referred above, could not be used to support the condominium`s claim. The provision referred to above was based on the public policy requirement that sufficient parking spaces should, generally, be made available in the area. There was no requirement that the beneficiaries of such parking spaces must actually be the members of the relevant condominium, where the parking spaces are located.
Accordingly, the Italian Supreme Court rejected the Condominio`s claim, and ordered that the members of the Condominio (Mr Pinto Marcello and others )should jointly be liable for the cost of these proceedings.
And of course, Italian condominium litigation continues to arise, sometimes in totally new and unexpected guises.
Dr Claudio Del Giudice – Copyrights reserved