The legislation on Superbonus 110 establishes that the resolutions of the condominium assembly concerning the approval of the interventions of energy requalification they are valid if approved with a number of votes representing the majority of those present and at least one third of the value of the condominium building. There law was requested regarding the legitimacy of certain authorization resolutions.
To deepen the subject in detail, we involved the lawyer Nicola Ferraro https://www.studiodetilla.com/i-professionisti/avvocato-nicola-ferraro/, equity partner by de Tilla Law Firm https://www.studiodetilla.com/.
Lawyer Ferraro, what does the law establish regarding the possibility, for a condominium assembly, to start energy redevelopment interventions through Superbonus 110 funding?
The legislator has established a quorum decision in favor of works involving thermal insulation interventions on the vertical, horizontal and inclined surfaces of condominium buildings, the replacement of air conditioning systems, the installation of photovoltaic solar systems connected to the electricity grid and columns for charging vehicles electrical. These works include interventions that may affect condominiums.
As anticipated in the introduction, these works can now be approved with the favorable vote of the “simple” majority of those present representing at least “one third” of the value of the building. This is an attenuated majority compared to the one that is more generically called to deliberate on innovations and extraordinary maintenance works of condominium buildings pursuant to art. 1136 cc
What are the limits of the decision-making power of the condominium assembly on this type of work?
The first jurisprudential interventions on the subject have placed a critical emphasis on some issues. In particular, I refer to the case in which the works approved by the majority concern the assets of the individual condominiums or interventions on the condominium facade.
Can you give us a concrete example?
An example is what concerns the projecting balconies. It is necessary to remember that the jurisprudence, even recent, has reaffirmed the principle according to which the condominium assembly cannot take decisions concerning individual condominiums on exclusively owned assets. Therefore, not only innovations that compromise the equal use and the concurrent right of the other participants in the use of the common thing must be considered prohibited, but also those that affect the exclusive ownership of individual condominiums.
Resolutions affecting individual property are void. The projecting balconies, as they do not have a support or roof function, are not a condominium property but are owned by the housing unit they access, precisely, as extensions of the real estate unit from which they protrude.
So how far can the condominium assembly go in deliberating works that insist on the flooring of the balconies of exclusive property?
In one case, now remote, the Court of Cassation affirmed the nullity of the condominium resolution which approved the installation of a pre-painted corrugated sheet on the external parts of an exclusive property and at the same time the external walls were insulated , with consequent occupation of a small portion of the exclusive property terrace. For the Court, the thermal insulation purposes proposed by the resolution were irrelevant since, even if taken in the common interest or to fulfill a legal obligation, they were, in any case, such as to violate the exclusive property rights of a condominium.
However, in other judgments the same Supreme Court, in confirming the principle that the condominium assembly cannot take decisions concerning individual condominiums in the context of the assets owned by them, introduced a limitation in the fact that the decisions taken “reflect on the proper use of the common thing“. In a recent Ordict the Court of Milan, called upon to deal with the case of an authorization resolution concerning the laying of a thermal coat on the facade with insistence on the flooring of some exclusively owned terraces, did not detect the existence of sufficient elements to believe that a minimum shrinkage of the flooring of the terraces (in the species of a few centimeters) could not be tolerated by the owners.
For the Milanese Court, in fact, the deliberate work was functional to a more adequate use of common things and was aimed at satisfying not only condominium but also public interests, highly worthy of protection. Therefore, the loss of walkable surface of the balcony to a minimum, in the face of the installation of a thermal coat on the facade aimed at giving the condominium building a greater status energy, may appear as a modest and tolerable sacrifice, and such as not to represent a significant infringement of the right to property.
The decision taken by the Court of Milan, in my opinion, finds its plausible explanation in the particular favorable regime with which the legislator has provided that, in the interest of the community, decisions aimed at carrying out thermal insulation interventions in condominium buildings can be adopted. However, it should be added that the Court of Rome had previously received the opposite solution. Also in this case, the matter dealt with concerned the laying of a thermal coat on the floor of some balconies of exclusive property.
However, the particularity of the case examined by the Capitoline Court, and a different reason from the one subsequently examined by the Court of Milan, lies in the fact that only at the time of approval of the “Estimate“The condominiums had been informed that the works, approved by a previous assembly, would also consist in the construction of a thermal coat. In that meeting, among other things, no specific indication was given regarding the changes that would result on the balconies owned by the individual condominiums. This was due to the fact that any technical assessment in this regard had been delegated to a technical commission.
What can you tell us about the condominium facade?
The condominium facade, unlike the projecting balconies, is a common good. The perimeter walls of the condominium building, although not serving as load-bearing walls, should be understood as master walls since they determine the volumetric consistency of the building and protect it from atmospheric and thermal agents, delimit the covered surface and outline its architectural outline.
The facade of a building, like the main perimeter walls, due to its functional destination, constitutes one of the essential structures for the very existence of the building considered as a whole (and its statics), so that it necessarily falls between the parts subject to communion between the owners of the different portions of the building and remains undifferentiated to the service of the same.
In this case, the general principle to which reference must be made is that according to which the condominium assembly cannot approve innovations that actually alter the architectural decoration of the building. In general, an innovation that damages the architectural decoration of the condominium building constitutes not only the one that alters its architectural lines, but also that which, in any case, negatively reflects on the harmonic aspect of it, regardless of the aesthetic value that the building may have. .
Any innovation that is aimed at altering the architectural decoration of the building and, therefore, also of its facade is prohibited. As recently stated by the Supreme Court, this prohibition is also subject to innovations aimed at improving the energy efficiency of the building. Significant in this regard is another decision taken by the Court of Milan regarding the validity of an assembly resolution which authorized works for the installation of a thermal insulation system to replace the klinker native to.
In the opinion of the Court of Milan on klinker it constitutes a characteristic of many buildings in Milan, as a sign of their construction in a specific historical period. It is therefore capable of imparting a particular distinctive trait, from an aesthetic point of view, to the buildings and is such as to give them a specific suitability and physiognomy. Its replacement with a different material, in terms of shape and luster, alters the original characteristic feature of the facade. Which must therefore be protected.
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