Common parts with exclusive use in a condominium

What distinguishes a common part with exclusive use

A common part with exclusive use remains condominium property in every respect: the owner who benefits from it does not become its owner, but has the right to use it exclusively, excluding other owners from direct enjoyment. This right can arise from the original purchase deed, from a clause in a contractual bylaw approved unanimously, or from a consolidated use over time that case law qualifies as the functional destination of the asset.

The case most regulated by law is the rooftop terrace that serves as the building's covering but whose use is reserved to the owner of the top floor unit. Article 1126 of the Italian Civil Code governs precisely this situation, distinguishing between the owner who uses it exclusively and the other owners who still benefit from its function as a roof. Courtyards, gardens, and internal passageways follow similar principles but without a dedicated specific rule, so their regime is reconstructed from the condominium bylaws and the ownership deeds of the individual units.

Who pays the costs: the rule under article 1126

For a rooftop terrace with exclusive use, article 1126 of the Italian Civil Code establishes a precise allocation: the owner who has exclusive use contributes one third of the repair or reconstruction cost, while the other owners for whom the terrace serves as a roof bear the remaining two thirds in proportion to their ownership shares. The logic is that exclusive use entails greater wear on the asset, but its function as a covering for the building benefits everyone.

For courtyards, gardens, and similar areas, absent a specific rule, the criterion set out in the condominium bylaws or the constitutive deed prevails. Where no explicit indication exists, case law distinguishes between ordinary maintenance costs tied to daily use, which tend to fall on whoever uses the asset exclusively, and extraordinary structural costs that remain allocated among all owners according to general ownership shares, because they affect the preservation of the building as a whole.

Before approving an expense it is worth always checking three points: whether the contractual condominium bylaws contain a specific clause on cost allocation, whether the work is ordinary (cleaning, minor upkeep) or extraordinary (rebuilding, waterproofing), and whether damage from infiltration affects only the unit below or the entire building.

Maintenance, assembly decisions, and liability

Even when use is exclusive, decisions on extraordinary maintenance remain within the competence of the condominium assembly, because the asset remains common property. The owner with exclusive use therefore cannot independently decide on structural works, but can and should promptly report any issues to the property manager, such as infiltration from the terrace or deterioration of the waterproofing layer, so the assembly procedure can be activated.

In case of infiltration damage, liability follows the same pattern as costs: if the damage stems from a lack of ordinary maintenance attributable to the owner with exclusive use, liability and the related compensation fall on that owner; if it stems from a structural defect or the natural aging of the waterproofing, liability is condominium wide and the repair cost follows the allocation set out in article 1126.

In day to day management, the property manager plays a central role: keeping track of who has exclusive use of which assets, periodically checking their condition through inspections or reports, and bringing to the assembly, with adequate technical documentation such as surveys and quotes, any work that goes beyond ordinary maintenance. Management software such as AmministraPro can help track this information, linking exclusive use clauses, received reports, and cost allocation according to the correct ownership shares to each condominium asset, reducing the risk of errors when splitting costs among the different units.

Selling the unit and transferring the exclusive use right

The right of exclusive use over a common part generally follows the fate of the property unit to which it is linked: if the owner of the penthouse with exclusive use of the terrace sells the apartment, the buyer automatically inherits that right, unless the deed provides otherwise. It is therefore essential for the property manager to verify that the clause is correctly recorded in the sale deed and to promptly update the condominium registry with the new holder of the right, in order to avoid disputes over future cost allocation.

Frequently asked questions