Ban on Altering the Purpose of the Common Asset

Article 1102 of the Italian Civil Code sets two limits on the use of the common asset: not preventing the other participants from using it equally and not altering its intended purpose. The second limit is often overlooked but is decisive. Altering the purpose means changing the typical function of the common asset, turning it into something different from what it is naturally meant for, or withdrawing it, wholly or in part, from collective use. Even a use that does not hinder the others but changes the asset's purpose is unlawful.

The two limits of Article 1102

The rule grants each owner broad freedom to draw from the common asset every possible utility, including a more intensive use than the others. This freedom, however, meets two insurmountable boundaries. The first is respect for equal use: the owner cannot prevent the others from using the asset in the same way. The second is respect for the intended purpose: the owner cannot change the asset's function. The two limits operate together but are distinct. A use may respect equal use and still violate the purpose, and in that case it remains prohibited.

What altering the purpose means

The purpose of a common asset is the function it is naturally devoted to in relation to the building and the units it serves. The courtyard is meant to give air, light and access; the entrance hall for passage; the landing for distribution toward the apartments; the attic for protecting and insulating the roof. Altering the purpose means using that asset for a scope incompatible with its typical function, or permanently appropriating it by withdrawing it from common use. What matters is not only whether the use disturbs the others: it matters whether it distorts what the asset must be for the building.

Concrete examples of use that alters the purpose

In practice there are typical situations where the purpose limit is exceeded, regardless of whether the other owners are hindered or not.

• Permanently occupying a portion of courtyard or landing with fixed structures, withdrawing it from common use.
• Turning a common room to a use incompatible with its original function without everyone's consent.
• Fencing off or closing a part of a common area and reserving it to oneself.
• Using the entrance hall or stairs as a permanent store for personal belongings.
• Turning the common attic into a habitable room for the exclusive use of one owner.

Lawful more intensive use and alteration: the boundary

The owner has the right to an even more intensive use of the common asset, provided it does not take the same possibility from the others and does not change the asset's purpose. The boundary is delicate. Passing more often through the entrance hall, parking temporarily in the courtyard according to the rules, using the common wall for a permitted installation are lawful more intensive uses. Fencing off that portion of courtyard, closing that entrance hall, permanently occupying that space are instead alterations of the purpose. The difference lies in the character: a use stays lawful if it is compatible with the common function and reversible, and becomes unlawful if it appropriates the asset or distorts its scope.

The consequences of unlawful use

Whoever alters the purpose of the common asset commits a wrongful act that the other owners and the manager can counter. It is possible to seek the removal of the works and the restoration of the premises, plus any damages. Use protracted over time acquires no right if a suitable title is lacking, and the mere tolerance of the other owners does not turn an abusive occupation into a right. Only a contractual act, accepted by everyone, can lawfully redirect a common part to a different purpose or assign its exclusive use to an owner.

The role of the manager

The manager has the duty to stop uses that alter the purpose of common parts, governing their use and ensuring compliance with the regulation. Faced with an abusive occupation, they may serve notice on the owner and bring the matter to the meeting to resolve on actions protecting the common property. Documenting the situation with minutes, photographs and communications is essential, because in court what counts is proving concretely that the use distorted the asset's function or withdrew it from the community.

With management software such as AmministraPro the manager can record reports, notices and minutes concerning improper uses of common parts, keeping an orderly and searchable history to support the meeting's decisions. Learn more on the features page and compare the plans in the pricing section.