Practical regulations
Handling unauthorized use of common spaces
It is common for a resident to extend their use of a courtyard, an under stair storage area, a landing or another common space beyond what the law allows, effectively excluding other residents from enjoying it. Article 1102 of the Italian civil code allows each co owner to use common parts, but only on condition that its purpose is not altered and other co owners are not prevented from making equal use of it. When this condition is breached, the situation is treated as unauthorized occupation. The property manager plays a central role: verifying the facts, gathering evidence, sending a formal notice and, if needed, bringing the matter to the assembly to decide on further action, including legal proceedings.
What Article 1102 of the civil code establishes
Article 1102 states that every co owner may use the common property, provided they do not alter its intended purpose and do not prevent other participants from using it according to their right. This means individual use is legitimate only as long as it remains compatible with the collective potential use: it is not necessary that every other co owner be actively using the space at that moment, it is enough that they are deprived of the possibility of doing so.
Occupation becomes unauthorized when it exceeds the threshold of equal use: a parking spot permanently carved out of a shared courtyard, materials stored on a permanent basis in a common storage area, or a veranda that closes off a shared landing are typical examples. Case law distinguishes between more intensive but non exclusive use, which is allowed, and occupation that effectively removes the space from other co owners, which is not, assessing on a case by case basis how much the right of others is actually compressed.
The property manager's initial fact finding
Before taking any formal action, the property manager must verify the facts with objective evidence, because a formal notice based on vague impressions loses weight and is easier to challenge.
Useful documentation to gather:
- Dated photographs of the occupied space, ideally taken at several points in time to demonstrate that the occupation is stable
- Building floor plans and the millesimal tables to confirm the common nature of the area
- Written reports from other residents documenting the impediment they experienced
- Minutes of previous assembly meetings that already mention the common area
- Any building permit, or lack of one, if the occupation involves structural works
The formal notice: content and timing
Once the facts are verified, the property manager sends a written formal notice to the resident involved, preferably by registered mail with return receipt or certified email, so that the date is provable. The notice should describe the situation precisely, refer to Article 1102 of the civil code, request removal of the occupation within a reasonable period, typically between fifteen and thirty days, and warn that failure to comply will result in the matter being brought before the assembly for further decisions.
The formal notice is not just a courtesy: it is the step that later allows the manager, in the assembly or in any court proceeding, to prove that the resident was given the opportunity to fix the situation before more decisive measures were taken. Keeping a copy of the notice and proof of delivery is therefore essential, and a tool like AmministraPro allows the communication to be archived together with the photographic evidence and related minutes in a single file that can be consulted if a dispute arises.
The assembly resolution and next steps
If the formal notice has no effect, the property manager places the matter on the agenda of the next available assembly meeting. The assembly resolves, with the ordinary majorities required for acts of routine administration and protection of common parts, to authorize the manager to act, including through legal proceedings, to restore the previous state of the space, along with any request for compensation for the period of occupation.
The typical legal action is a claim for restoration, asking the court to order the removal of the works or items occupying the common space. In cases where the occupation also involves unauthorized building works, the property manager may, in coordination with the assembly, also consider reporting the matter to the relevant municipal offices, while the civil action to protect common parts remains independent from any administrative one.
Frequently asked questions
Can the property manager act alone against a resident occupying a common space without waiting for the assembly?
For urgent protective measures, such as a written formal notice aimed at stopping a worsening situation, the manager can act independently based on their ordinary powers. To bring an actual legal action, however, authorization from the assembly is normally required, passed with the majorities set for acts protecting common parts. Documenting every step, from the first report through the formal notice to the resolution, is what makes the building's position solid if the matter ends up in a dispute, and archiving everything in a single digital file with AmministraPro makes this part of the manager's job considerably easier.
What happens if the occupying resident claims to have used the common space for many years?
The mere passage of time does not automatically turn unauthorized occupation into an acquired right, because what needs to be proven is continuous, peaceful and public possession of the area carried out with the intention of behaving as the exclusive owner, which is quite different from use simply tolerated by other residents. Even where the occupation has lasted a long time, the manager can still proceed with the formal notice and, if necessary, a claim for restoration, while the final assessment of any rights matured over time is up to the court based on the specific evidence of the case.
Can the assembly decide to formalize the occupation instead of requesting its removal?
Yes, the assembly can consider authorizing exclusive use of the space in favor of the occupying resident, but this requires a resolution passed with the qualified majorities required for innovations or changes to the use of common parts, not just tacit consent or an ordinary majority. Alternatively, the parties can agree on an occupation fee payable to the building, formalized in writing, so that this deliberate choice is clearly distinguished from unauthorized occupation passively suffered.
What evidence is needed to win a restoration claim against unauthorized occupation?
Evidence is needed to demonstrate both the common nature of the space, through floor plans and millesimal tables, and the actual restriction of other residents' right to use it, through photographs, witness statements and written reports collected over time. It is equally important to show that the building acted diligently, sending the formal notice within a reasonable time and bringing the matter to the assembly without unjustified delay, because prolonged inaction can be used by the other party to argue implicit tolerance.
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