The assembly can say no to the chimney if the contractual regulation prohibits it

Contractual regulation and imposed limitations are at the centre of the Cassio 31593/2025 order filed on 4 December. The case concerns the assembly's rejection of a request to install a smoke flue for the start-up of a restaurant business. The shareholder, who had lost in the first and second instance, had appealed to the judges of legitimacy invoking the violation of Article 1102 of the Italian Civil Code, which allows the most intense use of the common property, as long as the destination of the property is respected, the equal use by the other participants in the community is allowed, and the statics, safety and aesthetics of the building are not jeopardised.

In detail, the condominium owner pointed out that the perimeter wall is not only intended to support the building, to allow the opening of doors and windows and to protect the living units, but also performs accessory functions such as allowing thesupport of signs, pipes, chimneys and beams, and that, in the present case, the condominium had already allowed, in the past, the construction of a chimney to renovate its heating plant.

The Court of Cassation clarified that the condominium's by-laws were contractual in nature and therefore could legitimately prohibit individual owners from proceeding on their own initiative to install fixtures on walls, both inside and outside the building, without the prior authorisation of the assembly, and that any alterations to the building had to be authorised by the administrator, who, in turn, would decide after hearing the opinion of an expert.

The violation of the applicable scope of Article 1102 Civil Code could not be invoked because the contractual regulation that is characterised by having been prepared by the sole original owner of the building, and accepted with the individual deeds of purchase by the owners, or has been adopted in the assembly with the unanimous consent of all the owners.

Contractual regulations can also derogate from or supplement the legal regulations, given the availability of the subject matter, allowing private autonomy to enter into agreements that place, in the common interest, limitations on the rights of the owners, both with regard to the condominium parts and with regard to the content of the dominant right over the portions of their exclusive property and can therefore legitimately give a stricter definition - than that accepted by article 1120 of the Civil Code - of the limit of architectural decorum, extending the prohibition of innovations to the point of imposing the preservation of elements pertaining to symmetry and aesthetics.