Condominium Ownership (CO): Works on Common Parts Subject to Exclusive Use Rights

In condominium ownership (Stockwerkeigentum), it is very common for the condominium regulations to assign an individual co-owner the exclusive use right over a common part: a garden area, a roof terrace, an uncovered parking space. This right confers a tangible advantage but does not transform the beneficiary into the sole owner. The distinction has significant practical consequences, particularly when the co-owner intends to carry out building works on the part they use.

What is the exclusive use right?

The exclusive use right allows a co-owner to use individually a part of the building or land that, legally, remains common property. The legal basis is found in Art. 712a et seq. of the Swiss Civil Code (CC). The right is typically established in the use and management regulations of the condominium or directly in the deed of constitution registered in the Land Registry.

Typical examples include a garden area assigned to the ground-floor flat, a terrace connected to the penthouse, a section of the flat roof, or a parking space in the communal garage. The holder may enjoy these spaces exclusively, but ownership remains with the community of co-owners.

Exclusive use does not mean absolute freedom

A widespread misconception among co-owners is the belief that the exclusive use right authorises any intervention on the assigned part. This is not the case. The beneficiary co-owner may use the space in accordance with its designated purpose, but may not make structural modifications without the consent of the other co-owners.

The reason is straightforward: the part remains legally common property. Any intervention that goes beyond ordinary maintenance affects a collectively owned asset and therefore requires a resolution of the co-owners' assembly, in accordance with the majority rules prescribed by law (Art. 712m CC).

Frequent cases in practice

In the practice of the Law Firm and Notary Office Haab, Avv. Hugo Haab and Avv. Roberto Haab regularly encounter situations of this kind:

• Installation of a conservatory or veranda on a terrace subject to an exclusive use right. This constitutes building work that alters the external appearance of the building and requires the assembly's consent.
• Construction of a lounge area or pergola on the flat roof. Even installations that the co-owner considers "temporary" may constitute work requiring approval.
• Planting of tall trees in the assigned garden. If the vegetation affects the structure of the land or the aesthetics of the building, the assembly must decide.
• Enclosure of a parking space with side walls and a gate. The intervention converts an open area into a closed space, altering the common part.

What majority is required to approve the works?

The required majority depends on the nature of the work. For useful building works, that is, those that increase the value or improve the profitability of the property, a qualified majority of all co-owners who also represent the majority of the value quotas is required (Art. 712m para. 1 CC). For luxury works or those that alter the designated purpose of the property, unanimity is required (Art. 712m para. 2 CC).

In any event, a co-owner who proceeds with works without the required assembly approval risks an order to restore the previous state, with the costs borne entirely at their own expense.

Who bears the maintenance costs?

Another aspect that frequently gives rise to disputes is the allocation of costs. As a rule, the co-owner holding the exclusive use right bears the costs of ordinary maintenance of the assigned part (cleaning, minor repairs, garden upkeep). For extraordinary maintenance, such as re-waterproofing a terrace or replacing external flooring, the position is more delicate. Where the regulations do not expressly address the point, case law tends to allocate extraordinary costs to the community, since the part remains common property regardless.

A well-drafted set of condominium regulations prevents a large share of these conflicts. For this reason, it is advisable to review the content of the regulations before purchasing a flat in condominium ownership with exclusive use rights.

Advice on condominium ownership

Disputes concerning exclusive use rights are among the most common in Ticino condominium litigation. Whether the matter involves obtaining the assembly's consent for building works, challenging works carried out without authorisation, or clarifying the allocation of costs, Haab Legal in Lugano offers advice grounded in practical real estate experience. Contact us for an assessment of your situation.

For a personal consultation: info@haablegal.ch | +41 91 913 30 70