The owners of two apartments take legal action against the builder, complaining of a soundproofing defect; in the first and second degree, the judges recognize the compensation for the damage due to a depreciation of the properties equal to 20%. The construction company opposes it, arguing that the soundproofing parameters do not apply to the terraces – as external environments – and to non-inhabitable rooms, such as corridors, closets and bathrooms.
The Court of Cassation, with the order of 22 February 2023 n. 5487 (text at the bottom), specifies that the passive acoustic requirements of buildings apply to any internal environment where people stay and where human activities are carried out (DPCM 05.12.1997). The purpose of the discipline is to reduce human exposure to noise, therefore, finds application for the housing unit in its entirety (including bathrooms, corridors, closets) and not just for portions of it. As far as the terrace is concerned, it is true that the regulation refers to “residential environments” which the law on noise pollution qualifies as internal environments (art. 2 c. 1 letter b) law 447/1995), nevertheless, in case in point, the apartment below has the terrace of the apartment above as a cover and the noise that occurs in it propagates, through the walls on which it rests and on which it is grafted, inside the apartments. Therefore, given the particular conformation of the places, the soundproofing works had to be carried out also on the terraces.
On the subject it should be noted:
Real Estate & Property – Guide to property administration and management (Condominium, Lease, Sale, Relations with the Public Administration, real estate market, tax authorities) edited by Magliulo Federico, Monegat Mariagrazia, IPSOA
The story
The owners of two buildings took legal action against the construction companies, requesting compensation for damages for the lack of soundproofing of the same. In the first and second instances, the plaintiff’s applications were accepted; in particular, the judge recognized compensation – due to the depreciation of 20% of the individual apartments – equal to approximately 115 thousand euros in favor of one owner and approximately 91 thousand in favor of the other, as well as further items of damage. According to the trial judge, the soundproofing parameters of buildings (DPCM 12.5.1997) are applicable to all surfaces of the actors’ apartments: both to the terraces and to the non-habitable rooms. Indeed:
- with regard to terraces, the propagation of noise occurs through the walls on which they rest; moreover, they are not intended only for facing but can be used differently and “the technical standard on passive acoustic requirements also takes into consideration the building components, specifying that they consist of horizontal and vertical partitions”;
- The uninhabitable environments they constitute internal environments in any case intended for the permanence of people.
The construction companies appeal to the Supreme Court.
Premise: the soundproofing parameters of buildings
Il DPCM 5.12.1997 received the “determination of the passive acoustic requirements of buildings” in order to reduce human exposure to noise (art. 1). The regulations indicate the limits to be observed with reference to noise insulation in buildings. The decree applies to residential environments identified by the law on noise pollution (law 447/1995, art. 2 c. 1 letter b), i.e. any internal environment to a building intended for the permanence of people and used for various human activities (excluding environments intended for production activities)1. Table A, contained in Annex A, includes buildings used for:
- residence or similar;
- to offices and similar;
- to hotels, boarding houses and similar businesses;
- to hospitals, clinics, nursing homes and similar;
- to school activities at all levels and similar;
- to recreational or religious activities or similar;
- to commercial or similar activities.
The horizontal and vertical partitions are components of the buildings (art. 2 c. 2).
Terrace that serves as a cover to the apartment below and soundproofing
The construction companies censure the contested sentence for having applied the technical rules of the aforementioned DPCM – in relation to the passive acoustic requirements of the buildings – also to the terraces and non-inhabitable rooms. According to the reconstruction of the appellants, the terraces are rooms outside the buildingopen on all sides and sometimes even above, while disciplining from wed pertains to internal spaces. Furthermore, the decree distinguishes between internal and external, residential and non-residential premises.
The Supreme Court does not accept the complaint.
The ground of appeal is inadmissible because it does not deal with an affirmation of the enforced sentence, the result of a factual investigation, according to which the problem of soundproofing the terraces is not limited to the space that constitutes them, but it also concerns the propagation of noise through the masonry on which they rest. According to theiter reasoning of the judges of the merits, even the terraces must be subjected to the fulfillment of the compliance with the acoustic requirements expected that, failing that, in the specific case, “the noise that was manifested in them was propagated inside the apartments”. In fact, the terrace in question serves as a cover for the apartment below, therefore, the solution adopted by the contested ruling is consistent with the state of the places and based on a factual assessment, unquestionable in terms of legitimacy.
Compliance with acoustic requirements also for non-habitable rooms
The appellants complain that the enforced sentence deemed the acoustic requirements referred to in the mentioned DPCM to be applicable also to non-inhabitable premises, not specifically indicated in the ruling but identified in the appeal as corridors, closet and bathroom.
The judges of legitimacy consider censorship unfounded, given that the aforementioned rooms are part of the house and, some of them, represent an essential portion of it. In this regard, it seems illogical that legislation aimed at limiting people’s exposure to noise does not apply to the entire housing unit, but only limited to parts of it.
The DPCM 12.5.1997 mentions the living environments referring to the law on noise pollution (law 447/1995) where reference is made to any internal environment in which people remain and in which human activities are carried out. Table A attached to the decree considers as residential buildings not only intended for residence, but also those used as offices, hospitals, schools and the like while buildings intended for production activities are excluded. From this it emerges that “the premises inside the aforementioned buildings fall within the aforementioned notion of living environment».
The equitable assessment of depreciation damage
The appellants complain that the enforced sentence did not follow the findings of the expert witness and, for the purposes of liquidating the compensation, considered the damage caused by the soundproofing defect as serious.
This contention is also unfounded.
As regards the first finding, it is undisputed that the judge can deviate from what is indicated in the court-appointed advice as long as he offers a logical reasoning. In fact, according to the jurisprudence, «the exercise by the judge of the power to decide does not imply constraints with respect to the results of the court-appointed technical consultancy, from which the judge can depart by giving adequate reasons» (Cass. 30733/2017; Cass. 17757/2014).
With regard to the liquidation of the compensation, the trial judge assessed the depreciation due to the soundproofing defect considering various aspects such as:
- the value of the properties,
- the spread of noise in many of their parts,
- the lower value in case of sale,
- the inconvenience endured for the execution of the necessary work and in any case not sufficient to remedy it.
The assessment of the damage on an equitable basis (ex art. 1226 c.c.) is left to the judge of merit and its decision, if it is suitably argued, is unquestionable in terms of legitimacy (Cass. 24070/2017; Cass. 5090/2016; Cass. n. 8213/2013).
Conclusions
For all the reasons set out above, the appeal is rejected and the appellant companies are ordered jointly to pay the costs of the proceedings, settled at 12,200.00 euros, of which 200.00 euros for disbursements, plus legal accessories and general expenses. Furthermore, the same are ordered to pay the additional amount by way of unified contribution equal to that envisaged for the appeal, if due.
NOTE
[1] For environments intended for production activities, the discipline referred to in the legislative decree of 15 August 1991, n. 277, except as regards the introduction of noise from external sound sources to the premises in which the production activities take place (art. 2 c. 1 letter. b) law 447/1995).
Civil cassation, ordinance n. 5487/2023