Easements in an Italian condominium: common cases and rules

An easement (servitu) in an Italian condominium is a topic that directly affects the relationships between units and with the common parts. Under article 1027 of the Civil Code, a predial easement is the burden imposed on one property for the benefit of another property belonging to a different owner. In a condominium building this translates into very concrete situations: a right of way crossing the common courtyard, an open view towards the neighbour's land, a pipe running under the floor of another unit.

What a predial easement is

An easement links two properties: the dominant one, which draws a benefit, and the servient one, which bears the burden. It is a real right, tied to the property rather than the person: if the dominant property is sold, the easement transfers automatically to the new owner without further deeds. The owner of the servient property cannot do anything that tends to reduce the exercise of the easement or make it more inconvenient.

Condominium easements: the most common cases

In a condominium context easements arise mostly in a few typical situations. It is worth distinguishing them, because rules and limits change depending on the type.

Right of way

This is the most common one. It allows crossing another party's land, for example an entrance hall, a courtyard or a garden, to reach one's unit or the public road. When a property has no access to the road, the owner can request a compulsory right of way over the adjoining property against payment of compensation. In other cases the right of way stems from an agreement or from the other ways of creation.

Easement of view

The easement of view concerns the right to look out over the neighbour's land from windows, balconies or terraces. It is often connected to legal distances between buildings and to openings. In a condominium it can emerge when an opening offers a view over another owner's land or property, with consequences for that owner's building options.

Easements on common parts

A typical feature of the condominium is that an easement can burden the common parts for the benefit of a single unit, or affect the relationships between different units. Case law accepts that within a condominium an individual can claim or bear burdens of this kind. However, the easement, which presupposes two properties owned by different people, must be kept distinct from the simple use of the common thing, which belongs to all owners under the rules on joint ownership.

How an easement is created

Article 1058 of the Civil Code lists the ways of creation. Easements can arise by contract or by will, and in these cases, since they concern real estate, written form is essential and in practice a notarial deed with registration is used. They can also be created by court judgment, where the law provides for it as in compulsory easements, or by destination of the head of the family. Some apparent easements can also be acquired by adverse possession, through possession maintained over time.

• Contract between owners, by written deed with registration.
• Will of the property owner.
• Court judgment, typical of compulsory easements.
• Destination of the head of the family.
• Adverse possession, for apparent easements.

Rights and duties of the parties

The holder of the easement must exercise it satisfying their need with the least possible burden on the servient property. They cannot make innovations that make the condition of the servient property more onerous and must carry out, unless otherwise agreed, the works needed to preserve the easement. The owner of the servient property, in turn, must refrain from conduct that hinders the exercise of the right. When the easement is created for a future benefit, an easement compensation may be due.

How an easement is extinguished

An easement is not necessarily perpetual. It is extinguished by the holder's waiver, by expiry of the term when it was created for a set time, by merger when the dominant and servient properties end up in the same ownership, and by non-use maintained for twenty years. The non-use term runs differently depending on whether the easement is negative or positive. In a condominium these aspects matter when a right of way has long gone unused or when two units change ownership: checking the state of the right avoids basing claims on an easement that has already lapsed.

The most common disputes and how to prevent them

Disputes arise mostly when the easement is not clearly documented: challenges on the existence of the right, its content, the width of a passage, the opening of a view. Prevention comes from the traceability of titles and registered deeds, and from condominium rules that record the existing burdens on units and common parts.

Keeping track with management software

Condominium management software helps keep in order the documentation that often decides a dispute over an easement in a condominium: deeds, floor plans, rules, correspondence with owners. Having everything retrievable reduces the risk of challenges on the existence or content of the right. AmministraPro lets you archive documents per building and per unit and share them with owners. You can see how it works on the features page or compare the plans in the pricing section.