Presumption of Common Ownership: When an Asset Is Shared

The presumption of common ownership is the rule whereby assets intended for common service or enjoyment are presumed to belong to all owners, unless a title states otherwise. Its basis is Article 1117 of the Italian Civil Code, which lists the common parts but not exhaustively: what serves the whole building by its location and function is common. Whoever claims exclusive ownership of one such asset must provide contrary proof through a suitable title.

The list in Article 1117 is not closed

The rule cites land, foundations, bearing walls, roofs and terraces, stairs, entrance doors, vestibules, courtyards, facades, as well as premises and installations intended for common use. This list, however, is illustrative: assets not expressly named are also common, provided they perform a function instrumental to collective enjoyment. Case law has thus recognized the common nature, for example, of cavities, ventilated foundations, technical rooms and service spaces, when objectively intended for common utility.

The decisive criterion is not the name of the asset, but its purpose. If a room or a structure serves or is potentially intended to serve all owners, the presumption applies, even without a specific indication in the title.

How the presumption operates

The presumption relieves the condominium from having to positively prove common ownership of every shared asset: it starts from the idea that the asset belongs to all, and it is up to whoever contests it to reverse this conclusion. It is a mechanism that shifts the burden of proof in favor of the community, consistent with the structure of a condominium, where common parts serve the exclusive units.

For the presumption to operate, however, an objective link between the asset and the building is required: the purpose must exist at the moment the condominium comes into being, that is when the units are transferred to different owners. It is at that moment that the ownership situation crystallizes.

The contrary title that overcomes the presumption

The presumption is rebuttable, not absolute: it can be overcome. The title suitable to exclude common ownership must be dated prior to or contemporaneous with the birth of the condominium and clearly attribute exclusive ownership of the asset to a specific unit. A later agreement among some owners is not enough, nor is a de facto situation.

• The original purchase deed that expressly reserves the asset to a single unit
• The condominium regulation of contractual nature, attached to the deeds and accepted by all owners
• A common deed of provenance precisely indicating the exclusive belonging
• Adverse possession matured and ascertained in court, which constitutes an autonomous title of acquisition

Not suitable titles, by contrast, are mere cadastral records, which serve tax purposes and do not prove ownership, nor tolerances or prolonged uses unaccompanied by the requirements of adverse possession.

Who must provide the proof

The burden of proof lies with whoever asserts exclusive ownership. If an owner claims that an accessory room, an attic or a portion of the courtyard belongs to them alone, they must produce the title. Failing that, the asset remains common. This rule protects the meeting from undocumented claims and gives certainty to the management of common parts.

In court, the assessment always starts from the deeds of provenance of the individual units; only if the titles are silent does one move to examining the concrete characteristics of the asset, to establish its objective purpose. It is a two-step path the administrator should know in order not to fuel needless litigation.

Practical effects on management

Knowing whether an asset is common determines who pays for maintenance, who decides on works and who may use it. An asset presumed common contributes to expenses shared on thousandths and to meeting decisions; an exclusive asset stays outside condominium management. Clarifying ownership before resolving works avoids challenges and reimbursement claims.

For the administrator it is therefore useful to keep titles, regulations and floor plans of each condominium in an orderly way. With AmministraPro the documentary archive is digital and linked to the thousandths tables, so tracing the nature of an asset and its correct allocation is immediate. The features are described on the /funzioni page and the plans with transparent costs on the /prezzi page.