The exclusive right of use is a right that arose in the 1960s from notarial practice as a solution to a market need not yet covered by the legislature.
These were the years when, in large cities such as Milan, the population increase in urban areas brought a necessary fractionation of properties and the creation of common areas such as parking lots, gardens and condominium courtyards. This is how, for the first time, a part of the building that is owned by the entire condominium and those who live there is granted in exclusive right to use it.
The first questions arise: what is it? A prior easement? An atypical real right? A right of use? Is it a perfectly transferable right? Is it perpetual or not?
An answer to all these questions was given by the Supreme Court in United Sections in Judgment No. 28972 of 2020, as a reaction to the large real estate transactions that have caused increasing uncertainty in the world of law since 2000.
The case narrated in the Judgment concerns the co-ownership of a building consisting of three units for commercial use on the ground floor, three units for residential use on the second floor, a backyard and an area in front of the commercial premises. With the division of the building, exclusive use of the portions of the front courtyard was assigned to the stores located on the ground floor.
Following the dissolution of the community and the sale of part of the building, subsequent successors sued the owner of the stores, who appropriated the front court and built a building on the court.
Let's take a step back: it was already known before the Judgment, that exclusive use did not affect the ownership of the common parts, which by definition are the property of the condominium, but rather the allocation of the related faculties of enjoyment among the condominiums. Some common parts, in other words, are configured as common to some more than to others, depending on their geographical location.
It is precisely in this circumstance that the Supreme Court, with a complete revirement, pronounces on the nature of the right of exclusive use, clarifying that it is not an atypical real right as previously thought, but rather an obligatory relationship, valid only between the original contracting parties - non-transferable and therefore devoid of real effectiveness. The effect generated is the nullity of the transfer of the property between successive owners.
The arguments of the Judgment start from the conception of use of the common thing in the condominium context, specifying that "use is one of the ways through which the right can be exercised, and forms an intrinsic and characterizing part, the essential core of its content".
The Court in other words affirms that the clause through which the exclusive use of an area is granted to an individual real estate unit has spread through the negotiation practice, particularly notarially, theorized in order to solve cadastral problems in the course of litigation in which the ownership in the head of a condominium of the portion of a common part was disputed, pursuant to Article 1117 cc.
First, the Supreme Court reviews everything that exclusive use is not, completely demolishing the approach previously given by the Notariat.
In fact, exclusive use, as a connotation of the right of ownership under Art. 832 cc, is not referable to the right in rem of use under Art. 1021 cc. of which the exclusive use of a common part in the condominium does not mutate the limits of duration, transferability and manner of extinction.
The right of exclusive use is not even classifiable among the easements of prior use, since the conformation from the easement, which can be shaped according to the most varied uses, can never result in a general right of enjoyment of the servant fund, since this would result in the emptying of the property of it in its fundamental core.
Nor is the right of exclusive use configurable as a product of bargaining autonomy: this is because of the principle of typicality and the "numerus clausus" of real rights, under which only the Law can establish figures of real rights and private individuals cannot affect their content.
Ultimately, after a lengthy analysis, the Supreme Court affirms the following principle of law: "The agreement having as its object the creation of the so-called 'real right of exclusive use' over a portion of the condominium courtyard, constituting as such a common part of the building, aiming at the creation of an atypical figure of limited real right, such as to affect, depriving it of concrete content, the essential core of the condominium owners' right of equal use of the common thing, enshrined in Article 1102 of the Civil Code, is precluded by the principle, inherent in the codictic system, of the numerus clausus of real rights and the typicality of them".
Article 1102 cc - in fact - reiterates the general principle that condominiums may not prevent others from making equal use according to their right: it prohibits the total impairment of the enjoyment due to the condominiums over the common thing, however, it does not exclude the possibility of a more intense use by one condominium owner than the others.
The Supreme Court affirms that in order to understand the fate of the negotiated title that provides for the right of exclusive use, it is necessary first of all to adhere to the literal meaning of the text (which undoubtedly deposes against the interpretation of the act as directed to the transfer of ownership) and also to investigate the will of the parties, making express reference to Article 1362 of the Civil Code.
It is therefore necessary to analyze the will of the original owner, in order to investigate whether the will at the time of the establishment of the condominium was limited to the attribution of exclusive use, reserving ownership to the alienator, or was directed to the transfer of ownership of an appurtenance.
In other words, our right is nothing more than a covenant, a transaction or an agreement through which the Parties aim at the creation of the right of exclusive use, that is, the granting of perpetual use of a mandatory nature, having value only inter partes and not erga omnes.