Grids and cavities in the condominium affixed in an area that was already open to public use before being affixed: the COSAP is due

From January 2021 the new Single Property Fee, provided for by art. 1, paragraph 816, of Law 27 December 2019, n. 160 replaced: the fee for the occupation of public spaces and areas – COSAP; the municipal tax on advertising and the law on public billposting.

There are numerous previous controversies on the obligation or otherwise to pay the COSAP and, consequently, there are still numerous judicial decisions on the matter.

The Supreme Court recently ruled on the following question: Are the grids and cavity walls of the condominium exempt from paying the Cosap tax if the area in which they were affixed was already open to public use before being affixed?

The Court agreed with the condominium. According to the same judge, the COSAP was not due because it was not a matter of occupation of public land for which there was a concession and neither was it a matter of illegal occupation of public land or subject to public easement, since it was instead a matter of occupation of a private area of ​​the same condominium, already open to public use, of which the Municipality with the approval building permit of the condominium building construction project had authorized the use for the best exclusive enjoyment of the building.

The Cassation, on the other hand, found the condominium wrong: the COSAP in the examined case is due.

According to the Supreme Justices the Tribunal fell into error because it only looked at the legitimacy or non-abusiveness of placing the gratings and cavity walls from an urban planning-building point of view whereas instead it would have considered that the area on which the gratings had been affixed was an area already, before the affixing, open to public use.

With reference to the use of private areas, as the Court has specified, precisely in relation to cases similar to the one mentioned abovethe fee is applied if the work in which the use takes place was carried out in a period subsequent to the enslavement of the public use area expected the use of that fund by the community already arose with the limitations deriving from the presence of the work itself (Cass. 10 March 2023 n. 7210).