Short-term rentals in a condominium or super condominium, what is permitted and what is prohibited

The controversy over limits to short rentals in cities also involves the opposition between flat owners within flat blocks. A quarrel that often ends up in our courtrooms.

On the one hand, apartment owners who want to feel free to rent out their units as they wish, and thus also for short periods, perhaps in order to be able to use them from time to time for a child who occasionally needs them, or because they do not want to risk arrears or non-release on expiry, or because they benefit from more income in this way.

On the other hand, owners annoyed by the comings and goings of unfamiliar, often noisy people with different habits, who object not only to short-term rentals but also to rentals to students, which are equally disliked, especially in quiet and elegant apartment blocks in the central areas of some cities. On this point, the courts have increasingly clarified the rights and limits of co-tenants and the means at their disposal to end behaviour deemed 'harassing'. We discuss this with Donatella Marino, Giada Beghini and Tamara Corazza, professional lawyers at Hospitality Law Lab, with specific expertise in residential and tourism real estate.

Can a condominium (or super condominium) regulation specify what unit owners can (or cannot) do in their flats?

"Condominium regulations of a contractual nature, usually drawn up by the builder, may either prohibit certain uses or impose limits on the individual building units owned exclusively by condominiums," Donatella Marino replies, "but the limits must be provided for in a clear and circumscribed manner, expressed in an unequivocal manner, and in order to be enforceable against new purchasers they must be adequately publicised with regular transcription or, failing that, with express acceptance by the purchasing party" (Cf. Cass. 27257/2019).

If the condominium regulations do not provide for these restrictions, what can the annoyed condominium owners do?

"The condominium assembly may, however, with the majorities laid down in the Civil Code, provide for specific rules imposing limits not on individual properties but on the use of common property, placed in order to protect goods of shared importance, such as safety, decorum, tranquillity or the like” continues Marino, "for example by imposing silence or prohibiting certain noises at certain times, or prohibiting smoking in common areas, or prolonged standing in hallways or improper use of lifts". These rules are mandatory for all condominiums and violations may be subject to fines.

When condominium regulations provide for sanctions, what happens in case of violation?

"Art. 70 of the Implementing Provisions of the Civil Code provides that for infringements of the condominium regulations, a fine of up to €200, and, in the event of a repeat offence, up to €800, may be established as a sanction,' Giada Beghini replies, 'the sum shall be devolved to the fund available to the administrator for ordinary expenses. The penalty is imposed following a resolution of the Assembly with the majorities set forth in the second paragraph of Article 1136 of the Civil Code.

The rule, however, does not appear in the list of mandatory rules; therefore, there is nothing to prevent the condominium (or super condominium) by-laws from attributing to a body other than the assembly the power to impose the fine, for example, directly the condominium administrator (Cf. Brescia Court 2032/2022). If the condominium owner does not comply spontaneously, then," Beghini continues, "the procedure for the recovery of the sums is the traditional one before the competent judicial authority under Art. 63 of the Implementing Provisions of the Civil Code and thus, by an appeal for an immediately enforceable injunction, notwithstanding opposition, which can be filed by the administrator.

If there is a ban but no sanction, what should be done to stop the activity?

Tamara Corazza replies, "Among other things, it is the condominium administrator's duty to ensure compliance with the rules (Art. 1130 c. 1 n. 1 c.c.). This means that they are entitled to initiate litigation in order to obtain compliance with the regulations even without a prior resolution of the Assembly, by virtue of the power granted to them by the Civil Code (Cass. 11841/2012). Be careful, though. Condominium matters are among those for which a mandatory mediation procedure is provided for as a condition for proceeding with a court application.

Art. 71c of the implementing provisions to the Civil Code covers disputes in condominium matters, subject to compulsory mediation, those arising from the breach or misapplication of the provisions of Arts. 1117 to 1139 of the Civil Code and the provisions on condominiums regulated in the implementing provisions of the same Code".

"Following the so-called Cartabia Reform (Legislative Decree 10 October 2022, no. 149)," Corazza continues, "which introduced Art. 5-ter to Legislative Decree 4 March 2010, no. 28 on mediation proceedings, as of 30 June, the condominium administrator is entitled to initiate, join and participate in mediation proceedings.

This means that he may do so without prior authorisation of the condominium assembly. The minutes containing the conciliation agreement or the mediator's conciliatory proposal will be submitted for approval to the condominium assembly, which must decide within the time limit set in the agreement or proposal with the majorities provided for in Article 1136 of the Civil Code. If it is not approved within that period, the conciliation is deemed not to have been concluded.”

What if the administrator does not intervene?

"Also recently the Court of Cassation (Cf. Cass. 16934/2023)," Beghini concludes, "held that the individual condominium owner retains the power to act in defence not only of his rights as exclusive owner, but also of his rights as co-owner pro quota of the common parts, with the possibility of recourse to the judicial authority in the event of inaction on the part of the condominium administration (pursuant to Art. 1105 of the Civil Code dictated on the subject of communion, but also applicable to condominiums of buildings by virtue of the reference made by Art. 1139 of the Code). The individual condominium owner may therefore also bring the matter before the judicial authority (subject, when required as a condition of proceeding, to an attempt at mediation).”