Modifications to the common areas of the co-ownership: is unanimity required?

You can proceed to modification of the common areas of a co-ownershipwithout theunanimity reached the meeting? This is anything but a trivial question, even compared to recent innovations introduced at the regulatory level. On the other hand, for owners of an apartment within a co-ownership, it is essential to know whether everyone's agreement is necessary to, for example, modify the intended use of a garden or a parking lot.

Generally speaking, two main cases can be identified. The first is that relating toexclusive use by a condominium owner of a common space, such as a gallery. In this case, unanimity will be necessary during the co-ownership meeting. The second, however, concerns the modification of the destination of spaces used by everyone: the positive opinion of all residents is no longer necessary, but an overwhelming majority is required.

How does the modification of the common areas of the co-ownership work?

The common areas of the condominium represent the spaces from which all residents benefit. Their management is established byarticle 1102 of the Civil Codea rule that outlines how any condominium owner can use the common property, provided they do not change its purpose and do not prevent others from making equal use of it.

But what happens when we find ourselves faced with the need, or simply the desire, to change the use of the common areas of the co-ownership? As already mentioned, you may find yourself faced with two main cases:

  • modification for exclusive use by a co-ownership owner;
  • the modification for common use by all co-ownerships.

Exclusive use of the common areas of the co-ownership

In the context of complex co-ownership relationships, it may happen that a resident takes advantage of a common space for personal and exclusive purposes. The most typical case is that of part of a common garden from which, in fact, only the owner of the condominium on the first floor benefits. But is it possible to really change the destination of a space or property provided for all co-ownerships, without the assembly having actually decided?

As we have already seen, thearticle 1102 of the Civil Code it does not allow the resident individual to modify the common thing in his opinion, thus preventing others from using it as well. So that a co-owner can exclusively use a part initially designed for everyone:

  • you will have to get it authorization of the co-ownership meetingreaching unanimity;
  • I can proceed without request only for me solar panelsbut providing for the related expenses, as provided for in article 1126 of the Civil Code.

The Court of Cassation also ruled on this question, by sentence 28972 of December 17, 2020: exclusive use without unanimous agreement of the assembly violates the property rights other co-ownerships.

Modification of common areas for the benefit of all co-ownerships

Another very common situation is that of a co-ownership which, for various reasons, wishes to modify the intended use of certain common areas of the property. For example, the most common case is that of the majority of residents wishing to transform a small municipal green space into a parking lot. In this case, is unanimity required at the co-ownership meeting?

With the change that occurred a few years ago inarticle 1117 of the Civil Code, it is no longer necessary for there to be a unanimous vote at the meeting to modify the intended use of common property in co-ownership. However, you will need:

  • the favorable opinion of four fifths of the co-ownerships;
  • the posting of the notice of co-ownership meeting at least thirty days before the meeting, in the main traffic areas of the property so that all residents can consult it.

It is also necessary that, when drafting the co-ownership resolution, compliance with these two points is expressly indicated, otherwise the decisions of the assembly could be invalidated.

However, as is easy to imagine, there are some boundaries: even when the assembly reaches four-fifths of positive opinions, all modifications of the intended use are not authorized by law. In particular, the following cannot be approved:

  • all interventions likely to put the stability and the security of the building;
  • all interventions likely to modify architectural decoration of property;
  • any interventions that could prevent one or more residents from enjoying their rights;
  • all interventions that could prevent people with disabilities from using common areas.

What to do if unapproved changes to common areas are made

But what to do if a modification to the common areas not previously approved is carried out in the co-ownership?

If a co-owner uses exclusively a common part of the property, without having obtained the unanimity of the assembly, the other co-owners can:

  • request that the common good be restored as initially planned;
  • possibly advance one refund request.

Generally speaking, the same applies to modifications to common areas made without four-fifths of the original assembly. Also in this case:

  • you can get the restoration of the common good;
  • you may seek compensation for any property rights that may have been violated.

As it is easy to imagine, the issue is very complex, especially with regard to the delicate relationships that co-ownership life often subjects us to. It is for this reason that it is always useful to seek the advice of a legal expert.

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