Negatory Action: Defending Common Parts From Easements

When a neighbour or a third party exercises over the condominium's common parts a right they do not in fact hold, for example a passage, a support or a view without any title, the condominium can defend itself with the negatory action provided by Article 949 of the Italian Civil Code. With this action the owner asks the court to declare the non-existence of the rights asserted by others over the property and, if disturbances or nuisances exist, to order their cessation, in addition to compensation for damage.

What the negatory action is

Article 949 of the Italian Civil Code grants the owner the right to act to have declared the non-existence of rights that others claim to hold over the property, when there is reason to fear prejudice. Where disturbances or nuisances also exist, the owner may request that their cessation be ordered, in addition to an order for compensation of damage. It is the typical action defending property against those who claim to burden it with an easement or another real right that does not exist.

Applied to the condominium, the negatory action serves to protect the common parts, such as the courtyard, the entrance hall, the perimeter wall or the manoeuvring area, from the claims of anyone exercising an unfounded right over them. It does not aim to reclaim possession, which is defended by other actions, but to deny the existence of another's right.

When it is used: the typical examples

The occasions on which the condominium resorts to the negatory action are numerous and recurring in practice. The common thread is a third party's claim to exercise a real right over the common parts without a valid title.

• The neighbour who habitually transits over the common courtyard claiming a right of passage never created
• The adjoining owner who leans a construction or a canopy against the common perimeter wall
• Someone who opens or maintains a view over the common parts asserting a non-existent right
• The third party who drains water or installs works on the common areas without an easement

Who can act: standing

The negatory action protecting the common parts can be brought by the manager, within their powers of preserving the common parts under Article 1130 of the Italian Civil Code, and by the individual owner, who is a co-owner of the property and has an interest in its defence. For disputes exceeding the manager's preservation powers, or concerning actions that are not merely defensive, a resolution of the owners' meeting authorising and defining the mandate is appropriate.

The concurrent standing of the manager and the owner allows more prompt protection: if the manager remains inactive, the individual can still act to defend the common property of which they are a co-owner.

Proof and the burden of proof

In the negatory action the condominium must prove its title to the property, but under a lightened burden: it is not required to provide the so-called diabolical proof of ownership going far back in time, it being sufficient to demonstrate, even by presumption, the deed of acquisition and the common nature of the property. It is instead for the one asserting the easement to prove the existence of their right, that is, the title, adverse possession or destination by the head of the family. Absent such proof, the easement is declared non-existent.

This allocation favours the condominium: whoever claims to burden the common parts must justify their right, whereas the condominium need only prove co-ownership of the property and the feared harm.

The effects of the judgment

The judgment upholding the negatory action declares the non-existence of the easement or right claimed by the third party, orders the cessation of any disturbances and nuisances, and may order restoration of the state of the premises, with the removal of unlawful works. If the condominium has suffered damage, the court orders compensation. The ruling shields the common parts from future claims based on the same situation.

Preventing through documentation

Many disputes are avoided or won thanks to documentation. Keeping a record of deeds of provenance, site plans, timely objections and communications with neighbours makes it possible to react before a tolerated use consolidates into a claim of right. Timeliness is also decisive to prevent the passing of time from maturing an adverse possession in favour of the third party.

With management software such as AmministraPro the manager centralises documents, resolutions, objections and correspondence with neighbours, keeping an organised memory useful for defending the common parts. The features are described on the /funzioni page, while plans and costs are shown on the /prezzi page.