The administrator replaces the gate lock without handing over the key

Very often situations arise in the condominium context in which not only the administrator, but also the participants, engage in unjustified behavior aimed at hindering, without well-founded interest, the use of the common good by one or more condominiums. The fundamental condition for exercising the right to obtain personal use from the common areas is strict compliance with the limits imposed by law.

The administrator replaces the gate lock without handing over the key. Done and decision

Il Court of Romewith the judgment no. 5313 published on April 3, 2023condemned a condominium to restore the pre-existing state of the places, consisting of a pedestrian access gate from the public roadthrough the return of the relevant key to the plaintiff/condominium and to put an end to the acts which prevented the person entitled to use said entrance.

The plaintiff, visually impaired with a high recognition of disability, stated that she had always been in possession of the key referred to in the pound sign of whichthrough which, along a common driveway, he could access his own garage via a considerably shorter route than the normal one.

Once replaced the lock on the gateIndeed, the administrator had not returned the key to the condominium, motivating the refusal with the opposition to its use by some condominiums.

The Condominium appeared denying all charges and, having completed the mandatory mediation procedure with negative results, the Judge ordered the expert witness who, having described the state of the places, had to verify whether the driveway delimited by the gate in question fell within the condominium properties and whether it was possible, by the plaintiff, a more intense use of the common good without prejudice to the equal right of the condominiums.

The plaintiff’s application was accepted on the basis of the provisions of theart. 1102 c.c., which allows each participant to use the common thing without altering its destination and without preventing the other condominiums from making use of it as well. Furthermore, from the documentation filed in the deeds and from the results of the CTU it emerged that the further entrance to the garage was placed at the service of the entire complex, so that the condominium’s interest in using the gate, the subject of dispute, arose automatically by virtue of the position of plaintiff owner.

Hence the acceptance of the application in consideration of the fact that the condominium made a “more comfortable use” of the driveway with its gatewhich was configured in the reduction of the route between the garage and the home of the same.

Final considerations

Once it has been ascertained that the driveway and gate are part of the commons, there is no doubt that the case in question falls within the scope of application of art. 1102 of the Civil Code, with respect to which the jurisprudence has stated that the notion of equal use “although it should not be understood in the sense of use identical and contemporary, it still implies that the destination of the thing remains compatible with the rights of the other participants” (Cass., seg. 6-2, 6 May 2021, no. 11870; Cass., sez. 2, 28 August 2020, no. 18038).

And it is equally peaceful that “to determine if themore intense use of the individual is permitted pursuant toart. 1102 c.c., he must have regard not touse concrete made by the other condominiums at a given time, but to the potential one in relation to the rights of each; L’use must in any case be considered permitted if the additional utility obtained by the individual co-owner is not different from that deriving from the original destination of the asset, provided that such use does not give rise to an easement of the aforementioned common good” (Cass., section 2, 16 April 2018, n. 9278).

In the present case, the driveway was found to be of a condominium nature and no more intense abuse or use had been made by the condominium towards the other condominiums, while it was the condominium that unlawfully suppressed the right of the plaintiff to continue to possess the key to the gate which had been held by him for years.

To abundance furthermore, particular attention should be paid to a fact which has taken second place with respect to the legal situation ascertained and, as such, sufficient to accept the request.

We are referring to the physical conditions of the plaintiff who – as stated in the justification – is a visually impaired subject with a recognition of disability exceeding 85%. This profile, on which it was not necessary to declare, was considered evidently absorbed by the legitimacy of the claim raised in court.

Nonetheless, it seems useful to remember that the principle of joint solidarity which has been enucleated with particular reference to the overcoming of architectural barriers in the condominium through the installation of an elevator.

By virtue of this principle, in fact, “the coexistence of several real estate units in a single building implies in itself the reconciliation, for the orderly development of that coexistence which is typical of relationships condominiumof various interests, among which must also include that of disabled people to the elimination of architectural barriers, object, moreover, of a fundamental right which is independent of the effective use, by them, of the buildings concerned” (Cass., section 2, 25 October 2012, n. 18334).

Now, if it is true that the case underlying the provision of the Court of Cassation concerned the overcoming of architectural barriers, it is, however, plausible to consider relevant, for the case of specific interest, the physical conditions in which the condominium is found where the Court had to evaluate which interest was worthy of protection: to allow the subject affected by significant disability to access the box with the least possible inconvenience, or to safeguard the interests of the other condominiums who would not have suffered from a more intense use of the common good by the same? We have no doubts in favor of the first solution.

On the other hand, it appears quite evident how the impediment placed by the administrator (with the non-delivery of the new key to the plaintiff) and by the condominiums is configured as a merely emulative act.