Large terrace of exclusive property not covering the underlying real estate units: the problem of expenses

The specific characteristic underlying art. 1126 cc is that the flat roof has the function of blanket floors, part of the floor below.

Having the aim not only of being a terrace for the apartment for which it is used but also of protecting the parts which are below, protected by it, the distribution of the expenses 1/3, 2/3and not just at the expense of the sidewalk owner.

Case law has extended this principle to the case single-storey terraces which, as such, have the same covering function.

If the terrace is large but it doesn't protect the underlying plans, it is not a common good and a distribution of expenses other than that which sees the total amount borne by the owner.

This principle is evidenced by Court of Appeal of Genoa n. 195 of April 3, 2024.

The case of the large terrace

Tizia is suing the other co-owners by asking to verify and declare that the expenses necessary for the conservation and enjoyment of the common areas of the co-ownership, for the provision of services of common interest and for innovations, must be borne by the co-owners in accordance with in art. 1123 of the Civil Code, in proportion to the value of each person's property on the basis of the thousandth tables to be determined by means of a specific CTU”.

According to the actress, the maintenance and conservation costs of the terrace, present on the third floor, were relating to all co-ownerships, because it is common property within the meaning of art. 1117 cm3

All the accused appear and they contest the proposed question.

The case, heard by an expert witness, was decided by the court with the following decision: “declares that the thousandth property tables of the building are those established by the architect on page 44 of the expertise dated 01/17/2022; rejects any other request from the parties; fully compensates the parties for litigation costs; definitively paid by the co-owners according to the values ​​determined in the news property thousandths tables the CTU's expenses already paid during the course of the case”.

The Court therefore partially grants the plaintiff's request by adopting the tables prepared by the expert witness. without taking into account theseparately in which it offers ventilation costs relating to the terrace present on the third floor, placing 1/3 at the expense of the co-owners and 2/3 at the expense of the applicant.

The motivation is as follows: from the photographic documentation recorded in the documents, it can be unequivocally deduced that the said the terrace cannot be identified either as a flat roof or as a single-storey terrace, as it doesn't serve as a cover of any underlying property and does not fulfill any structural function which implies its traceability to the common parts identified by article 1117 of the civil code and, therefore, none of the distribution criteria referred to in article 1123 of the civil code can be applied. to it, given that the said criteria are dictated solely and exclusively in relation to distribution of expenses relating to common areas of the condominium building.

In other words, as the defendants' defense rightly observed, the overhanging terrace in question is nothing other than the extension of the plaintiff's real estate unit of which it constitutes an outbuilding.

It follows that the costs relating to said building must be borne exclusively by the applicant, excluding the participation of the other co-owners.

The actress promotes call, arguing that the challenged decision was wrong for several reasons. He emphasizes that on the basis of the ctu, the terrace belonging to the exhibitor constitutes a cover for rooms and outbuildings which do not belong to him and, for this reason, the owners of these should also contribute to the costs of its conservation and of its maintenance; specifying that the terrace was not an extension of his accommodation but an independent outbuilding, having a covering function for the properties located below.

The Court notes that the proposed ground of appeal is unfounded.

According to the CTU, “the terrace on the third floor it's not a flat roof why it does not perform roofing functions for the co-ownershipnot covering the apartments below, and it is not a terrace because structurally and functionally it is independent and is not an integral part of the building because the apartment does not have direct access, the terrace does not fully guarantee a view of the apartment and not even a projection towards the outside, conditioned by the use of the balcony of the external staircase”.

According to the appellant, art. 1126 cc since the appellants, since they own properties underlying the terrace, should also contribute towards the costs relating thereto.

The Court finds this argument unconvincing.

Art. 1126 cm3 applies to flat roofs, such as structures blanket of the building located at the top of the building and which do not include other parts of floor at its level. This discipline has also been extended, through interpretation, to single-storey terraceswhich are located at the top of some rooms and, at the same time, on the same level as others and an overhanging terrace.

Jurisprudence recognizes this on the basis of the consideration that this entails.the same function as the flat roof” and it's, “cover and protect the underlying parts from atmospheric agents“and so it is”necessary for the very existence of the building» (Cass. 20287/17).

For this reason, it is assumed that all condominiums for which the terrace serves as blanket, are required to maintain it, in collaboration with any surface owner or holder of the right of exclusive use, according to the proportions imposed by art. 1126 cm3

This is not the case in this case given that the terrace in question does not absolve has the same function as the flat roof, that is to say the function of covering the floors of the building, and, therefore, closed rooms present inside the building itself, to the point that they are essential to the existence of the co-ownership itself.

The terrace in question, however, exceeds the vertical projection of the perimeter of the building and is not necessary for the existence of the building, to the point that the expert himself specified that it “does not contribute to the structural stability of the building” is this “the possible demolition of the ceiling would not jeopardize the function of the underlying balcony and portico, which would simply move from covered to uncovered.”

They are absenttherefore the requirements dictated by case law for the application of art. 1126 cm3

Art too. 1125 cc does not apply in the case in question. The cover consisting of the terrace of the appellant property is distinct from that helper function and is therefore not essential to the very existence of the superimposed floors, as provided for in art. 1125 cm3

Since the terrace is quiet caller property, who recognized that it constitutes an outbuilding of his apartment, being accessible only by a staircase and from the landing of the applicant's property, it must be excluded that it is, in its structural elements, attributable to the common property in accordance with art. 1117 cc It follows that the co-ownerships they are not obliged to compete the conservation and maintenance costs associated with it.

Reimbursement of expenses incurred by the co-owner necessary for the conservation of the common property

Conclusion

From the examination of the ctu and the photographs produced in the documents, the Court assimilated this large terrace, described as a structure protruding from the facade of the building, as projecting balconies.

They are part of the housing for which they are used and have no function in favor of common property or the property of third parties.

They are therefore in sole ownership and there is no contribution to the charges of other co-ownerships.

Only the coverings and decorative elements the front and lower parts must be considered as property common to all co-ownerships, when they fit into the facade of the building and contribute to making it aesthetic. If, however, there is no aesthetic link between these parts of the different balconies, we cannot speak of a common good even for these small extensions.

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