The building regulations
The discipline of the building regulations is contained in art. 1138 cc as well as, in part, in the Articles. 68, 69 70, 71 and 72 disp. att. cc
In particular, the Civil Code identifies cases where it is required and the content that should have.
The first paragraph of Article 1138, in fact, provides that “when a building in the number of condominiums is more than ten, must be formed a Regulation, which contains the rules on the use of common things and the award of costs, according to the rights and obligations to each owner, as well as rules for the protection of building decoration and those relating to the administration “.
The following paragraphs first, however, are concerned with establishing its procedures for approval and limits.
Compulsory, function and approval
Note that, the legislator has left unchanged the overcoming of the ten participants threshold for the mandatory training of the building regulations, as well as the main function of the same to regulate the use of the common things, provide for the expenses distribution criteria (Council Regulation in fact, must be attached tables thousandth), fix the rules for the protection of the décor of the building as well as those inherent in the administration of the common thing.
When the procedures of approval of the Regulation (with the majority established by the second paragraph of art. 1136 of the Civil Code), the third paragraph of Art. 1138 of the Civil Code, was amended version of the 2012 reform, which introduced the requirement that the same is attached to the register indicated by the number 7) of Art. 1130 of the Civil Code, that is, the “record of the minutes of the meetings” edited by the administrator.
As for the approval, in more detail, Article 1138 of the Civil Code states that the initiative for the formation of the building regulations or for the revision of the existing one, can be taken from each owner.
Okay, then, it requires the majority laid down in the second paragraph of Article 1136, ie a number of votes constituting a majority of those present and at least half of the value of the building.
Once approved, the Regulation must be annexed to the minutes register and the assemblies and, as we shall see, it can still be appealed according to the ordinary rules of appeal of the resolutions.
With reference to the limits, the last two paragraphs of article 1138 clarify that the regulation can not, with its rules, in any way impair the rights of each owner as they result from the acquisition and sale by the conventions.
It may not ever deviate from the provisions of Articles 1118 second paragraph (the condominium can not renounce its right on the common parts), 1119 (indivisibility), 1120 (innovations), 1131 (representation), 1132 (dissent condominiums compared ad litem), 1136 (due constitution and validity of resolutions) and 1137 (appeal of the resolutions of the Meeting) of the civil code.
Finally, the rules of the regulation may not prohibit owning or keeping pets.
Other limits for the preparation of a condominium regulations are set by Article 72 of the provisions for the implementation of the Civil Code, which states that this can not derogate from the previous articles 63, 66, 67 and 69.
The new provision “pet friendly”
One of the most significant changes introduced by the reform of the building regulations is related to the introduction of the new fifth paragraph of art. 1138 cc which, as seen, confirms the inability of service regulations to include provisions prohibiting the possession or keeping pets.
The “liberalization” entry of pets in condominium, a synonym for a “pet friendly” guidance by the legislator is bound to have an effect on impacting condominium disputes brought in court, from the vagueness of the definition.
While, in fact, in the first text of the reform, the relevance of the ban concerned the “pets” – that the case law in line with the evolutionary interpretation of existing rules, recognized as “sentient beings”, stating that “the cat, as well as the dog, it should be considered as family member “(Cass. 13.03.2013) – the final draft of the reform text of art. 1138 cc the term has been replaced with “pets.”
The difference is far from peaceful, because while it is clear that between the latter does not fall within the “exotic animals” (such as snakes), it is not the same for other animals of affection that are not always considered domestic (v ., for example, hamsters, ferrets, rabbits, etc.).
In any case, the Directive seems to be regarded as valid, according to the case, only for ordinary condominium regulations, because unlike those contracts that can legitimately restrict the powers and faculties belonging to condominiums on the parts of their exclusive property with the unanimous consent of all co-owners, those shareholders, approved by the majority of participants, the inclusion of clauses which affect the freedom of the individual blocks is not allowed to enjoy and dispose of his exclusive property, returning between these faculties of enjoyment also the detention of pets (Cass. 3705/2011).
Remain subject, of course, the general regulations laid down on the subject, including the obligation, looming against the owners, to maintain order and cleanliness in the walk, to use the leash in any place and to apply a muzzle the animals from aggressive nature (as provided by the Ordinance of the Ministry of health in 2009), in addition to the usual civil liability of owners for any damage caused by the animal art. 2052 cc, for harassing entries (in the form of noise and disturbing the peace) that exceed the normal tolerance (art. 844 of the Civil Code), and the references censored by criminal courts Art. 672 C.P. for “failure to housing and sore animal government”.
It is necessary at this point to emphasize that, from what we saw, it is clear that the legislature does not provide an unambiguous definition of the regulation, nor the condominium reform took steps to make specific contributions in the field.
In light of codicistica available, part of the doctrine maintains that the regulation represents a “law” Inside the condo, while other theories, more emphasis to a literal interpretation of the provision of the law, argue is a document containing a set of rules aimed at regulating ‘ use of common things and the allocation of costs on the basis of the rights and obligations to each building, as well as rules for the protection of the décor of the building and those relating to the administration.
According to case law, “the building regulations, such as which are the origin and the process of formation, and therefore, even when, is contractual in nature, is configured, in relation to its specific to constitute a kind of status function condominium community, as an act intended to affect a complex of legally binding rules for all members of that community, on a conceptually unique multi-person relationship, and to act as a source of obligations and rights, not because of the condominium community such as especially for individual condos “(Cass. n. 12342/1995).
Nature of Regulation
With reference to its nature, we observe that the Regulation can be: “contractual” (or negotiation), “ordinary” or “criminal.”
The difference between the three types of regulation is far from being only nominal but also extends to its content.
In fact, according to the judicial process, ordinary condominium regulations, approved in mind art. 1138, paragraph 4, of the Civil Code, by the majority of participants, can not import limitations of faculties including the right of ownership of the condos on the parts of their exclusive property (Cass. N. 12028/1993).
If the rules instead restricting the rights of the individual condos on their property or on the common parts, expanding the powers of one or more condominiums or attach to one or more of them more rights, must necessarily have a contractual nature and then be unanimously approved ” having to necessarily be inferred from the will of individuals justifying the source of acts accidents devices in their legal situation “(Cass. n. 3705/2011).
The court regulations, finally, it should not be able to reach the formation of the Regulation during the meeting and then recourse to the court so that it is the same to judgment.
In any case, as we have seen, the rules of the Regulation can not in any way impair the rights of each owner, as resulting from the acquisition and sale by the conventions, or contain inconsistent clauses or derogate from the provisions of the law, the list of which is expressly indicated in art. 1138 cc and art. 72 disp. att. cc
The observance of Regulation
By express provision of Article. 1107 cc, dictated on the subject of communion and also applicable to the condominium, by virtue of the reference contained in the third paragraph del’art. 1138 cc, the regulation, once approved, take effect for all participants, as well as the heirs and assigns, except appeal by the dissenters before the court within thirty days of deliberation.
For absent this period starts from the day when the decision was communicated to them.
If you are offered more appeals to the same Regulation, the court shall decide in a single judgment.
It is your responsibility, in accordance with Art. 1130 of the Civil Code, amended version of the l. n. 220/2012, point 1), ensuring compliance of building regulations, as well as keeping the register of the minutes of the meetings, at which the same is attached.
GECOSEI of Giuseppina Napolitano