Can the condominium be accompanied by his lawyer at the meeting?

pubblicato: Wednesday, 8 April, 2020

Can the condominium be accompanied by his lawyer at the meeting?

Lawyer can be delegated in writing. Several doubts, however, on the simultaneous presence of the condominium and the lawyer, unless explicit and unanimous consent of the assembly.

Dr. Lucia Izzo 06/04/2020

In a condominium, the meeting constitutes an essential opportunity for meeting and discussion, as well as for forming the condominium will. In fact, the law attributes this competence to taking the most important decisions relating to management and common goods.

It is the civil code that disciplines the multiple attributions that are due to the assembly of condominiums (cf. art.1135 cc) and to establish (cf. art. 1136 cc) what are the quorums, or those specific majorities so that the assembly is validly constituted (so-called constitutional quorums) and may adopt equally valid resolutions (deliberative quorums.

Condominium assembly: which subjects to call

The assembly is normally convened by the condominium administrator or, in his absence, can be convened at the initiative of each condominium. At least five days before the date set for the first call meeting, the so-called “notice of call”.

This notice must contain the specific indication of the agenda, as well as an indication of the place and time of the meeting.

The delivery of the notice can take place by registered mail, certified e-mail, fax or by hand delivery. The omission, late or incomplete convocation of the entitled parties puts at risk the possible meeting resolution that can be canceled pursuant to art. 1137 of the Italian Civil Code at the request of the absent or dissenting participants because they are not ritually summoned (see art.66 disp. Att. c.c.)

To avoid such a consequence, the notice of convocation must be sent to all subjects who have the right to participate in the meeting. The list includes, first of all, the owners of the individual units and the co-owners.

But there are several situations in which subjects other than owners can also participate. For example, in the situations referred to in art. 10 of the L. n. 392/78 the participation (and therefore the convocation) is also extended to the tenants.

Furthermore, among the exceptions provided for by the law to the rule of participation of owners only, there is also the one that allows the usufructuary to attend meetings, and to vote, in certain specifically identified cases (see art. 67 disp. Att. c.c.).

Condominium assembly and third party shareholdings

The condominium assembly, it is clear, is not a place open to indistinct participation: in order to protect the privacy of those entitled, the participation of third parties is not allowed, except in exceptional cases in which they include, inter alia, tenants and usufructuaries as previously highlighted.

Article. 68 of the provisions for the implementation of the civil code, moreover, expressly allows each condominium to attend the meeting also by means of a representative, with a written proxy.

In this case it is quite possible that a third party extraneous to the condominium structure, provided that it is ritually delegated, could attend, participate in the discussion and the consequent voting operations.

It should be noted that the director cannot be delegated powers for attending any meeting.

In the absence of a written proxy, therefore, the participation of other subjects in the condominium assembly extraneous or different from those legitimized does not seem admitted. Assumption that also appears confirmed by the Privacy Guarantor in its own Vademecum on “The condominium and privacy” (published in 2013, therefore before the application of EU Regulation 679/2016).

The Guarantor, in this document, specified that the condominium represents “a place of close coexistence between people where the balance between the transparency of the management of the common thing and the right to privacy of each one, guaranteed by the Privacy Code” is essential.

Consequently, it is deemed necessary to protect the privacy of the condominiums also at the meeting, by not allowing the presence of non-legitimate subjects who may become aware of information and personal data.

The Guarantor, however, clarified that in certain cases it is also allowed to subjects other than condominiums to participate in the assembly of condominiums. By way of example, mention is made of “technicians or consultants called upon to report on specific work to be carried out” in addition to the other exceptions envisaged by the regulations (eg tenants).

However, the vademecum specifies that these subjects, if the condominium assembly deems it necessary, may remain only for the time necessary to deal with the specific item on the agenda for which advice is requested.

Attendance of the lawyer to the condominium assembly

In principle, from reading the legislation in question, the condominium lawyer seems to be allowed to participate in the meeting without problems if he has been specifically delegated in writing by the legitimated subject (e.g. the owner).

Similarly, from reading the aforementioned Vademecum, it seems possible that the lawyer may participate as “consultant” to report on specific work to be carried out and only for the time necessary to do so.

However, it often happens that the lawyer shows up with the condominium, and not in his replacement as a delegate. In this case, it is believed that, regardless of his professional qualification, he represents a subject unrelated to the condominium structure and his participation is not allowed. Pena the damage to the privacy of condominiums.

In this case, the recourse to delegation to the lawyer will be useless: art. 67 avail. c.c., in fact, does not seem to admit the simultaneous presence of a delegate and delegator in the meeting, but only one of the two. Indeed, the same rule admits only one representative in the assembly in the case of apartments shared by several people.

It is not considered to be a problem if there is the explicit unanimous consent of the condominiums to its participation, as confirmed by the Privacy Guarantor in a provision dated 18 May 2006, published in the Official Gazette. 152 of 3 July 2006. However, any contrary, and sometimes much more stringent, provisions of the condominium regulation must be reserved.

In the absence of consent, unfortunately, there is no ad hoc regulation governing the matter and which provides indications on the removal of any “invited” strangers from the other condominiums. On the contrary, the presence of “unrelated” third parties at the meeting would not even seem to have consequences on the constitution or on the decisions adopted by the assembly itself.

In detail, the Court of Cassation, in order no. 28763 of 2017, referring to a previous provision (Cass. N. 11943/2003), reiterated that “participation in a condominium assembly of a foreign party or without legitimacy does not affect the validity of the constitution of the assembly and of the decisions assumed therein” but this “only if it appears that such participation did not affect the majority request and the prescribed quorum, nor the conduct of the discussion and the outcome of the vote”.

Source: Contemporanea.16842

GECOSEI of Giuseppina Napolitano

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