Building above from the roof terrace: who is entitled

Article 1127 of the Italian Civil Code grants the right to build above to the owner of the top floor and to the owner of the roof terrace (lastrico solare). The delicate point is that not every owner who uses the roof terrace also owns it exclusively. Being the owner of the roof terrace is one thing; having only a right of exclusive use over a surface that remains common is another. The distinction is decisive, because the right to build above presupposes ownership of the roof terrace, not mere use.

The roof terrace: what it is and who owns it

The roof terrace is the flat surface that covers the building or part of it, serving as a cover in place of a pitched roof. Absent a contrary title, it is common property under Article 1117 of the Italian Civil Code, because it protects the whole building. It may, however, belong in exclusive ownership to a single owner, where this results from the deeds of purchase or from regulations of a contractual nature. The classification must be assessed case by case on the basis of the titles.

Exclusive ownership and exclusive use are not the same

The difference between ownership and use is substantial. The exclusive owner of the roof terrace has full title and, in principle, may exercise the right to build above within the limits of the law. Someone who only has a right of exclusive use, by contrast, uses on a reserved basis a surface that remains common property: they enjoy the asset but do not own it. This use, however broad, does not transfer title and does not in itself found the right to build above, which Article 1127 reserves to the owner.

• exclusive ownership of the roof terrace: full title, a basis for the right to build above
• exclusive use of the roof terrace: reserved enjoyment of an asset that remains common, without title
• the distinction is established through the deeds of purchase and the contractual regulations
• where the roof terrace is common, overbuilding involves the condominium's decisions

The practical implications of the right to build above

Whoever is entitled to build above must still respect the limits of Article 1127: the building's structural conditions, its architectural appearance and the safeguarding of air and light to the lower floors. They must also pay the other owners the overbuilding indemnity, calculated on the current value of the area occupied by the new structure. By exploiting the cover, the overbuilding also affects the roof terrace's protective function for the building: the new construction must ensure waterproofing and weathertightness for the parts below.

When the roof terrace is common

If the roof terrace is common property, no owner may build above independently by using it as a base, because they would lack the title required by the rule. Such work would affect an asset belonging to everyone and would require the involvement of the condominium, with the necessary collective decisions and respect for the rights of the other participants. Before any project it is therefore essential to check the nature of the roof terrace, so as not to carry out unlawful works.

Documenting titles and rights in an orderly way

Distinguishing ownership from use, reconstructing titles and checking the regulations is documentary work that the manager can facilitate by keeping the building's records in order. A structured digital archive, with regulations, deeds and floor plans, reduces uncertainty when questions arise over ownership of the roof terrace or an overbuilding project. With a management platform such as AmministraPro the manager can store and share the condominium's documentation in an orderly way; the features are described on /funzioni, while plans and costs are on /prezzi.