Case law and legal scholars have, for many years now, asked what is the legislation which should be applied to specific cases in which a new floor or building is built on top of the last floor. Here are some examples of the conclusions reached by them.
i) The transformation of attics into living space
Some are of the opinion that the transformation of attics into living space alters the owner’s portion on the commonly held parts of the condominium building to the detriment of the other members thereof, thus entitling the latter to the indemnity provided for under the law (SALIS, Transformation of attics into living space, Riv. Giur. Edilizia, 1961, p. 65);
Another opinion is that the members of the condominium should, instead, be compensated with the revision of the condominium rates and, therefore, the proportional reduction of the owner’s portion in the condominium building (TRIOLA, The condominium, 2008, p. 287)
Case law has, however, stressed that the members of a condominium are only entitled to an indemnity in the event that one or more floors are built above the top floor [..] but not in those situation in which the roof of the last floor is raised (Italian Supreme Court judgment no. 6643/2000).
ii) The building of a terrace for the exclusive use of the owner thereof
The Italian Supreme Court has recently held that the building of a terrace for the exclusive use of the owner thereof [..] amounts to an unauthorized use thereof and, therefore, an innovation thereof which is forbidden since the structural transformation entails that the member of the condominium who has such works carried out takes possession of commonly held parts of the condominium, thus infringing the rights of others who are no longer able to make use of the space consisting in the attic which is now off bounds (Italian Supreme Court judgment no. 19281/2009).
More specifically, this does not qualify as the building of a new floor or new building on top of the last floor since it is nothing other than an alteration of commonly held parts which the other members of the condominium are no longer entitled to use (C. 1737/2005, C. 972/2006, C. 5753/2007).
iii) Covering of verandas
The building of an aluminum and glass structure on top of a terrace gives rise to the obligation to pay the indemnity provided for under article 1127 since the latter is to be deemed to be a new building raised on the last floor of a condominium building regardless of what was the previous height of such building.
Judgment no. 12173/1991 handed down by the Italian Supreme Court has held, in fact, that the indemnity is due on account of the mere fact that a new building occupies the air space above the condominium building belonging to all the members of the condominium.
It follows therefrom that the indemnity is also due when a building is completed on the terrace solely owned by one of the members of the condominium when such building is on the last floor of a condominium block of flats and performs, therefore, the role of covering such block of flats since it occupies the air space above such block of flats.
There is a dissenting opinion to the effect that the other members of a condominium are not entitled to the indemnity provided for under article 1127 of the Italian Civil Code in the event that a wood or iron projecting roof (or shed roof) with a transparent parapet – which has the sole objective of protecting the terrace from the weather – is built since it cannot be construed as a permanent building (Court of Cagliari dated December 7, 1993).
