Exclusive use of common parts in a condominium: limits

Exclusive use of a common part is the situation in which a single owner enjoys, on a reserved basis, an asset that remains commonly owned, such as a courtyard in front of their apartment or a roof terrace accessible only from their unit. It is a very common figure in purchase deeds and rules, but also delicate: case law has clarified that it cannot become an atypical, perpetual real right detached from the schemes provided by law. Understanding the limits of exclusive use avoids void clauses and disputes.

What exclusive use means

Exclusive use denotes the power, granted to an owner, to use a common part on a reserved basis, excluding the others from direct enjoyment. Ownership of the asset remains common, but use is concentrated in a single person. Typical examples are the garden or courtyard assigned to the ground-floor apartment, or the roof terrace reserved for the top-floor unit. Exclusive use differs from exclusive ownership, because it does not transfer the asset, and from the simple equal use of Article 1102, because it excludes the others.

The legal problem is the classification of this situation. Our legal system recognizes a closed number of real rights: it is not possible to create new, atypical ones by the parties' will. A perpetual, transferable exclusive use enforceable against anyone risks configuring precisely an atypical real right, which is not permitted.

The limits set by case law

The Joint Chambers of the Court of Cassation, in judgment no. 28972 of 17 December 2020, clarified that a perpetual real right of exclusive use over a common part, understood as an atypical figure, is not admissible. A clause granting an owner the perpetual exclusive use of a common asset, emptying the others' co-ownership of content and escaping the typical schemes, cannot be recognized as an autonomous real right. Faced with such a clause, the judge must try to bring it back to a typical figure admitted by the legal system.

There are mainly two possible routes: an easement, if its requirements are met, that is, a burden imposed on a common plot for the benefit of a unit, or the real right of use governed by Article 1021 of the Italian Civil Code, which however has its own limits, in particular as to duration, since it cannot exceed the holder's life if a natural person. If the clause cannot be brought back to any typical figure, the provision is void.

Exclusive use, easement and right of use compared

Distinguishing the figures is essential to understand what holds and what does not:

• easement: a burden on a plot for the benefit of another plot, which can be perpetual and is enforceable against subsequent purchasers if registered
• real right of use under Article 1021: allows the asset to be used and its fruits taken within the holder's needs, but cannot last beyond the natural person's life
• exclusive use as a mere contractual mode of enjoyment: binds the parties but does not create a real right enforceable against everyone perpetually
• exclusive ownership: transfers the asset, which leaves the common parts, and must appear in the titles

Correct classification determines duration, transferability and enforceability against new purchasers. A carelessly drafted clause may prove ineffective just when it is needed, for example on the sale of the unit or in the event of a dispute.

Practical effects in the condominium

In concrete terms, the owner who exclusively enjoys a common part must cover the maintenance costs connected with their use, while structural costs concerning the preservation of the common asset remain subject to the ordinary criteria, unless valid provisions state otherwise. Assignment for exclusive use does not exempt from contributing to the building's general costs and does not grant powers over meeting decisions that go beyond the asset concerned.

Anyone buying a unit with attached exclusive use of a common part should carefully check the title and registration, to understand whether the right is enforceable and for how long. The administrator, for their part, must take the correct classification into account when splitting costs and managing decisions.

Drafting valid and documented clauses

To avoid nullity and disputes, exclusive-use clauses must be drafted precisely, resorting to typical schemes when a lasting real effect is sought, and clearly documenting the limits and duration. Keeping titles, rules and registrations in an orderly way is the premise for correctly managing these rights over time and in handovers.

AmministraPro lets you archive titles, rules and documents linked to units and common parts, so as to always have the basis for correct management of exclusive use and costs. You can discover the features on the /funzioni page and the plans on the /prezzi page.