Water infiltration in the condominium
I infiltration damage of water often represent a reason for sour clashes, especially in the condominium area, because it is not always so easy to identify the related responsibilities and address the consequent actions to obtain any compensation for damage.
In such cases, in fact, a careful study of the individual case is necessary, in particular, on the basis of the documentation and of the photographic findings that demonstrate the cause from which the damage originates.
This is far from easy, especially in consideration of the large number of damages that can occur.
The first step to take is to establish the exact origin of the infiltration following a specific technical inspection carried out on site.
What is meant by infiltration?
Leaving aside particularly technical aspects, it is sufficient to note that infiltration usually means a physical phenomenon that occurs when a liquid passes through a solid surface.
With specific reference to the infiltrations that affect our homes, water often creeps into the walls, walls or even into the flat roofs causing, in some cases, not insignificant damage.
The ways in which an infiltration occurs are different and attributable to equally different causes, and in particular: humidity, continuous dripping, dripping or, again, a wet patch extended on the affected surface.
In most cases, the classic infiltration can be seen on the ceilings of our homes, but often it can also concern the floor and, in this case, we are faced with rising damp.
Liability for infiltrations: general profiles
Preliminarily to the identification of the guiding criteria for the division of responsibilities in the event of damage from infiltrations, it is necessary to identify the regulatory reference from which to start for the analysis of the topic.
This rule is represented by art. 2051 cc which expressly states that everyone is responsible for the damage caused by the things he has in custody, unless there is a chance case.
The applicability of this article in condominium relations has been affirmed, for some time now, by national jurisprudence (Cass., November 6, 1986, n.6507) in the event that the defects or failures of the common parts damage an exclusive property and, of course, vice versa.
Responsibility of an objective nature
In this regard, it is necessary to in primis, specify that the liability governed by art. 2051 cc is of an objective type.
This means that the mere occurrence of the harmful event is considered a necessary and sufficient condition for the purposes of configuring the liability, as neither the dangerousness of the thing, object of custody, nor the verification of the subjective element of the fault weighing on the subject are required. – keeper.
The causal link between the damage caused and the liability can be lost only when an objective external event, represented by the so-called fortuitous event, intervenes.
Doctrine and jurisprudence have outlined the institution of fortuitous chance as a factor not attributable to the behavior of the responsible subject but to the external causal element characterized by unpredictability and inevitability.
In other more specific terms, by chance it must be understood as an unforeseeable and not otherwise avoidable event that occurs independently of the will or action of the subject such as to make it impossible to fulfill the obligation.
Custodian responsible for the infiltrations
Having clarified the objective nature of the liability governed by art. 2051 cc, it is now necessary to analyze the figure of the responsible custodian.
In this regard, it should be noted that in the condominium area, the identification of the responsible custodian ex art. 2051 of the civil code required to pay compensation for damage, as noted, is not always of immediate resolution.
The custodian is essentially the person required to exercise control over the thing from which the damage is generated. This category certainly includes the owner of the res, but in certain cases the injured party may also be included.
This is the case, for example, in which the damage was caused by a common good, such as, for example, the condominium piping or external facade kept in poor condition through which the water has crept into because of the infiltration.
In this case, the condominium, who has suffered the damage from infiltration at his apartment, will have the right to obtain the provided refreshment. But this will be reduced by the share from the condominium itself due as an expense for the renovation or improvement of the facade.
Infiltration damage: responsibility of the condominium or of the individual private individual?
In order to correctly identify the responsible party required to pay compensation for damage in a condominium context, a general and preliminary distinction must be made between the cases in which the custodian of the res that caused the damage is the condominium, from the different case in which the thing belongs to the private individual.
This is because, despite being the condominium the caretaker ex art. 2051 cc of common goods and, therefore, obliged to take all necessary measures to prevent such goods from causing damage to individual condominiums or to third parties, in a similar sense, even the individual owner of the apartment can answer for any damage caused by his what’s this.
For example, if the shower tray in the bathroom of a condominium causes an infiltration to the roommate on the lower floor, it is evident that the private person is responsible for this damage, who will have to compensate the neighbor, personally or by activating any insurance policy.
A different case occurs in the hypothesis in which the infiltration by water in a private apartment has been caused by a condominium pipe.
In this case, it is clear that the condominium will be held responsible and, consequently, obliged to refund the damage, through the condominium insurance.
Bankruptcy liability for water infiltrations
The delimitation of responsibilities between condominium and condominium is not always so clear-cut, for example in cases where infiltrations are caused by rainwater.
The condominium, although keeper of common parts, is not always responsible for damage caused by water leaks caused by rain.
In some cases, in fact, the responsibility for the damage can also be attributed to the individual condominiums.
In this regard, the Court of Cassation clarified that, if rainwater infiltrates through a single terrace that does not entirely cover the building, it is the owner of the property to which the terrace belongs who must compensate for the damage.
On the contrary, if the terrace from which the infiltration originated entirely covers the condominium, the responsibility for the damage and the related compensation will be shared for a third between the owner of the property and for two thirds between the condominiums whose real estate units are covered by the terrace (Cass., 10 June 2016, n. 12007).
This criterion for the division of responsibilities is based on the general rule of joint and several liability pursuant to art. 2055 cc according to which in the event that the harmful fact is attributable to several persons, each of them is jointly and severally obliged to indemnify the harm (Cass., March 12, 2020, n.7044).
The controversial burden of proof in case of infiltration
As noted, obtaining compensation, following an injury caused by infiltration, is not immediate for the only occurrence of the harmful event: in fact, a complex burden of proof must be fulfilled.
In particular, the injured party must prove the existence of the causal link, that is, that the harm is derived from the infiltration.
It will then be the custodian’s responsibility to prove that the occurrence of the damage is due to a fortuitous event.
It is evident that, in such cases, the expert opinion of a professional cannot be disregarded or, in cases of more complex resolution and disagreement between the parties, it is the judge who establishes, through the documentation produced in the documents, the cause of the damage.
Compensation for infiltration damage
Once the custodian has been identified, the next step is the request for compensation for the damage caused by the infiltrations.
This compensation may be made in an equivalent or specific form.
In the first case, the compensation will consist of economic relief aimed at eliminating the economic damage suffered.
In the case of specific compensation, however, we will proceed with the direct elimination of the damage through specific actions aimed at restoring the asset to the same condition prior to the damage.
Source: LAVORINCASA.it by www.lavorincasa.it.
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