Damage from overbuilding: liability and compensation

An overbuilding, however lawful, can cause damage to lower floors and common parts: water infiltration, cracks, subsidence, disturbances during the works. Liability for this harm falls on the person carrying out the overbuilding, who must execute the work to a high standard and take the precautions needed not to damage others' property. Compensation for damage is distinct from the overbuilding indemnity provided by Article 1127 of the Italian Civil Code: the former presupposes actual harm, the latter is always owed.

The duties of the person building

Whoever carries out an overbuilding takes on the position of someone affecting an inhabited building and common parts. They therefore have a duty to conduct the works so as not to harm others, ensuring the stability, safety and weathertightness of the building. In particular, since the new construction replaces or modifies the cover, they must ensure waterproofing and protection of the floors below, which were previously guaranteed by the roof or roof terrace. Care in design and execution is the first measure to prevent damage.

Typical damage and its causes

The most frequent harm arises from incorrect execution or a failure of the new cover's weathertightness. Typical damage includes:

• water infiltration into lower floors due to waterproofing defects
• cracks or fractures caused by loads not adequately supported by the structures
• damage to common parts affected by the works, such as stairs or facades
• disturbances and nuisances during the works, beyond the limits of normal tolerability
• reduced functionality of common utilities involved in the work

Each of these forms of damage can found a claim for compensation against the person who overbuilt, if it is shown to be attributable to the work.

Compensation and indemnity: two separate levels

It is essential not to confuse compensation for damage with the overbuilding indemnity. The indemnity, provided by the last paragraph of Article 1127, is consideration owed for the exploitation of the air column and of the notional share of common land, and is always due, regardless of any damage. Compensation, by contrast, presupposes concrete and unjust harm caused by the execution of the work or by its malfunction. An owner may therefore be entitled both to their share of the indemnity and to compensation, if they have suffered actual harm.

Proof of damage and causal link

To obtain compensation the damaged owner must prove the existence of the damage and the causal link with the overbuilding. It is therefore decisive to document promptly the state of the premises, the origin of the harm and its extent, often through a technical appraisal. Photographic documentation, written reports and technical assessments form the body of evidence useful in any proceedings. The manager too, for the common parts, has an interest in documenting the damage and taking steps for its repair.

Insurance and claims management

Insurance cover can play an important role in managing overbuilding damage, both on the building policy side and on the liability of the person carrying out the works. Checking cover, reporting claims promptly and managing the relationship with the insurers are activities the manager must coordinate in an orderly way. With a management platform such as AmministraPro the manager can record claims, store photographic and technical documentation and keep track of communications with owners and insurers; the features are described on /funzioni, while plans are on /prezzi.