Servitudes Between Units and the Father-of-Family Rule

In a condominium there may be servitudes not only between separate plots, but also between the individual real estate units of the same building, when one apartment bears a burden for the benefit of another: the passage of a private pipe, a right to a view, transit through a room. These servitudes may arise by contract, by adverse possession or by destination by the father of the family. Understanding how they are created matters because they affect the value of the units and the limits of what each owner may do.

The servitude as a burden of one unit on another

A servitude is a burden imposed on a property for the benefit of another property belonging to a different owner. In a condominium the concept applies to relations between distinct units: the servient apartment bears the burden, the dominant one draws the benefit. This is the case of an owner's private pipe crossing another's room, of a passage serving an enclosed unit, or of the right to keep a view towards a neighbouring property. The servitude does not concern the common parts, which follow the condominium rules, but relations between private properties.

How a servitude is created

Voluntary predial servitudes are created by contract or by will, while coercive ones arise by law when certain conditions occur. Alongside these routes, the Italian Civil Code provides two ways of acquisition not based on a deed: adverse possession and destination by the father of the family. In relations between units of the same building, often originally owned by a single owner and later subdivided, these two mechanisms have particular importance.

• By contract: the two parties establish the burden and benefit in writing, with a registrable deed.
• Coercive: the law imposes the servitude when certain conditions exist, for example enclosure.
• By adverse possession: continued possession of an apparent servitude for the required period consolidates the acquisition.
• By destination by the father of the family: an arrangement created by the sole owner becomes a servitude upon subdivision.

Destination by the father of the family

Destination by the father of the family operates when two parts of a property, once belonging to a single owner, are separated and pass to different owners. If the original owner had created between the two parts a stable and visible arrangement corresponding to a servitude, for example a passage or a pipe serving one part, upon division that relationship automatically turns into a servitude, unless the subdivision deed provides otherwise. It is a frequent mechanism precisely in condominiums, where many units derive from the subdivision of a single building.

Apparent and non-apparent servitudes

The distinction between apparent and non-apparent servitudes is decisive. Apparent servitudes show themselves through visible and permanent works intended for their exercise, such as an exposed pipe, a channel, a passage door. Only apparent servitudes can be acquired by adverse possession and by destination by the father of the family. Non-apparent servitudes, without visible signs, instead require a title. In relations between condominium units this criterion serves to establish whether a factual use can consolidate into a right.

Relation to common parts

One must not confuse a servitude between private units with the use of common parts. The passage of a private pipe through a common stack, for example, falls under the use of the common asset governed by Article 1102 and does not give rise to a servitude on the condominium asset. A true servitude instead concerns the burden weighing on a private unit in favour of another. When an owner claims to use the common wall to serve a property extraneous to the condominium, no lawful servitude is created but an unlawful use, exceeding the limits of Article 1102.

Practical relevance for manager and owners

Knowing the servitudes existing between units is useful on several occasions: in drafting and updating the regulation, in handling disputes, in checking the rights burdening a unit at the time of sale. The condominium manager neither creates nor extinguishes servitudes, which are relations between private parties, but can flag their existence and keep the documentation when they affect condominium life, for example for the passage of systems. An orderly mapping prevents disputes.

To keep floor plans, titles, deeds and documentation of relations between units, including any servitudes, an orderly digital archive is valuable. With AmministraPro you can keep the register of units, attach deeds and floor plans and store the documentation useful for management, always accessible: the features are described on the /funzioni page and the plans on the /prezzi page.