Concierge's Apartment in a Condominium: The Cassation Court Ruling 15528/2025 and the Presumption of Co-ownership

The issue of common areas in condominiums has always been a source of debate and litigation. Among the most recurring questions is that concerning the legal nature of the concierge's apartment: is it common property for all co-owners, or can it be a private real estate unit? The Court of Cassation, with Ruling No. 15528 of June 10, 2025, has provided a fundamental clarification, reiterating the principles that must guide the interpretation of Article 1117 of the Civil Code on the matter. This decision is crucial for understanding how co-ownership of such spaces is established and what elements judges must consider.

The Regulatory Framework: Article 1117 of the Civil Code and Common Areas

Article 1117 of the Civil Code lists the parts of the building that are subject to common ownership by the owners of individual real estate units, unless the title states otherwise. Among these, under point 2, are the premises for the concierge service and the concierge's apartment. However, this presumption of common ownership is not absolute and can be overcome if there is a "contrary title." But what exactly is meant by "contrary title" and how is the destination of a property for common use ascertained?

The issue was the subject of litigation between Mr. D. M. and Mr. C. L., resolved in the first instance and then on appeal by the Court of Appeal of Milan, before reaching the Supreme Court. The appealed ruling, dated 25/10/2018, had rejected the claims, and the Cassation Court confirmed this orientation, providing valuable interpretative details.

The Key to Ruling 15528/2025: Destination at the Time of the Condominium's Establishment

The core of the Cassation Court's decision lies in defining the moment and manner in which the destination of the concierge's apartment must be ascertained. The Supreme Court clarified that the judge of merit must focus their investigation on a specific historical moment: that of the condominium's establishment. This typically occurs with the first sale of a single real estate unit by the original owner of the entire building.

In matters of condominiums in buildings, to determine whether a real estate unit is common, pursuant to Article 1117, no. 2, of the Civil Code, because it is intended as a concierge's apartment, the judge of merit must ascertain whether, at the time of the condominium's establishment, as a consequence of the sale of individual apartments by the original owner of the entire building, such a destination existed, either expressly or de facto, otherwise common ownership by the co-owners over it must be excluded.

This maxim is of utmost importance. The Cassation Court emphasizes that it is not sufficient for the apartment to be *currently* used or configured as a concierge's apartment to be considered a common area. It is essential that this destination was established at the time the condominium was created, i.e., when the builder or the sole owner began selling the individual real estate units, giving rise to co-ownership of the common areas.

The destination can be:

• Express: It results from a formal act, such as the contractual condominium rules, the purchase deed of individual units, or a specific notarial deed.
• De facto: It is inferred from objective and unequivocal circumstances that, at the time of the condominium's establishment, clearly indicated the intention to designate that real estate unit for common use as a concierge's apartment. This may include structural configuration, provision for concierge services, or other concrete evidence.

If such a destination, either express or de facto, cannot be proven at the time of the condominium's establishment, then the presumption of common ownership under Article 1117 of the Civil Code is invalidated, and the concierge's apartment cannot be considered common property of the co-owners. This implies that the real estate unit remains the exclusive property of the original builder or of whoever subsequently acquired it as private property.

Practical Implications for Condominiums and Administrators

Ruling 15528/2025 offers clarity but also demands greater attention. For co-owners, it means that the mere existence of a space identified as a "concierge's apartment" does not guarantee its common ownership. It will be necessary to verify the deeds of origin and the building's history. For condominium administrators, the ruling highlights the importance of:

• Carefully consulting the condominium rules and purchase deeds.
• Reconstructing the building's history, especially in relation to its establishment.
• Cautiously evaluating the inclusion of such real estate units among the common areas, especially in cases of disputes.

The Cassation Court's decision aligns with previous orientations (such as Ruling No. 14796 of 2017, referenced by the ruling itself), which have always emphasized the "contrary title" and its correct interpretation. The principle is clear: the presumption of common ownership is strong, but not invincible, and the contrary proof must be rigorous and refer to a very specific moment.

Conclusions

Ruling No. 15528 of June 10, 2025, by the Court of Cassation represents a firm point in the complex matter of condominiums. It reiterates that to establish the common nature of the concierge's apartment, the determining factor is its destination, express or de facto, at the time of the condominium's establishment. This guidance is fundamental for preventing and resolving disputes, providing co-owners, administrators, and judges with a clear criterion for ascertaining ownership.

In case of doubts or disputes regarding the ownership of condominium spaces, it is always advisable to seek legal professionals experienced in condominium law. A thorough analysis of the documentation and historical context can make a difference in protecting one's rights and preventing unpleasant surprises.