Adverse Possession of a Shared Condominium Courtyard

An owner who parks, cultivates or fences off the common courtyard for their own use over many years does not thereby acquire ownership of it. Adverse possession (usucapione) of a common area by a single owner is possible, but it requires exclusive possession, continued for twenty years and incompatible with the equal right of the other participants. Simply using the area more intensively, tolerated by the others and traceable to Article 1102 of the Italian Civil Code, is not enough: the title must change, that is, possession must be interverted, shown through visible and unequivocal acts.

Use of common property versus adverse possession: two different situations

Article 1102 of the Italian Civil Code allows each owner to use the common property, provided they do not alter its intended purpose and do not prevent the others from making equal use of it. An owner who uses the courtyard to reach their cellar, to park occasionally or to place planters is exercising a power derived from co-ownership: they do not possess exclusively, but use a property belonging to everyone. This conduct, however prolonged, never leads to adverse possession, because the decisive element is missing, namely possession as sole owner against the other co-owners.

Adverse possession, governed in general by Article 1158 of the Italian Civil Code for real estate, instead presupposes possession that openly opposes the right of others. It is not the duration of enjoyment that makes the difference, but its nature: as long as the use remains compatible with that of the others, one stays within Article 1102 and no useful term for acquisition begins to run.

Interversion of possession

To transform mere holding or joint possession into possession useful for adverse possession, interversion is required, that is, a change of title perceptible by the other owners. An inner attitude or an undisclosed decision is not enough: there must be an explicit act of opposition to the co-owners' right, or a material behaviour so unequivocal as to demonstrate the intention to possess the property as one's own and exclusive.

• Permanent fencing of the area that physically excludes the other owners
• Closing with a gate or padlock whose keys only one owner holds
• Building permanent works that remove the area from common use
• Consistent and visible conduct that makes the exclusive claim recognisable

From the moment interversion is completed and made manifest, the twenty-year term begins to run. Before that moment, years of merely more intensive use do not count.

What can be acquired: ownership or an easement

Adverse possession may concern exclusive ownership of the courtyard portion, or an easement burdening the common property in favour of the possessor's unit, for example a right of passage or parking. In both cases the general requirements of possession apply, but for easements it must be remembered that, under Article 1061 of the Italian Civil Code, only apparent easements, those accompanied by visible and permanent works, can be acquired by adverse possession.

This distinction has significant practical consequences: an owner claiming a right of passage over the courtyard without any permanent works will struggle to prove an apparent easement, whereas a ramp, an opening or dedicated paving make possession recognisable and potentially acquirable.

The burden of proof and the manager's role

Whoever invokes adverse possession must prove all the elements of possession: exclusivity, continuity, absence of violence and secrecy, and the passing of twenty years. The burden rests entirely on the owner who brings the claim, not on the condominium defending itself. Witnesses, dated photographic documentation, and records attesting to the fencing or closure of the area become decisive.

The condominium manager, for their part, has a duty to protect the common areas. If they detect a use that is taking on the features of exclusive occupation, they must inform the owners' meeting and, if necessary, interrupt possession with a formal act of opposition, which resets the running term. Prolonged tolerance, on the other hand, is the ground on which the opposing claim matures.

How to prevent and monitor

The most effective defence is documented vigilance. Keeping a record of the state of the premises, minuting objections at the owners' meeting, and formalising any use concessions on a precarious basis, so as to make clear that enjoyment is tolerated and not held as owner, all prevent interversion. A written precarious concession, in particular, blocks the adverse claim at its root because it characterises the use as arising from a revocable permission.

For the manager, having the history of common areas, resolutions and communications under control is essential. With management software such as AmministraPro you can store minutes, objections and photographic documentation in an orderly and always retrievable way; the available features are described on the /funzioni page, while plans and costs are shown on the /prezzi page.