Challenging the condominium report: the only reason for dispute can be the legitimacy of the resolution.
Challenging the condominium report: the only reason for dispute can be the legitimacy of the resolution.
Condominial statement, contestation by appeal: the merit choices of the assembly are unquestionable, except for excess of power.
Avv. Alessandro Gallucci 08/08/2019Fine modulo
All the condominiums, every year, pursuant to Articles 1130-1135 c.c., must be put in the possibility of discussing and eventually approving the condominium report.
This is a complex document, the drafting of which is strictly the responsibility of the building administrator (articles 1130-1130-bis of the Civil Code), has the function of reporting and informing the co-owners of the expenses incurred during the year for the management and conservation of common things as well as their distribution among all of them as well as the economic-financial situation of the condominium and of the disputes in progress.
Complex document, as specified by art. 1130-bis of the civil code It’s made of:
- an accounting register;
- a financial summary;
- a summary explanatory note of the management with indication also of the ongoing relationships and pending issues.
It should be remembered that failure to present the management report to the assembly within one hundred and eighty days of the end of the financial year determines the possibility for condominiums to ask the Judicial Authority to dismiss the administrator due to serious irregularities in management (art. 1130 cc) .
Until October 30, 2021, this judge will be the district court where the property is located, the next day the honorary judge of peace, given the new authorities assigned to him by legislative decree n. 116/2017.
Approval of the condominium report, the deliberative quorums.
The place appointed for the approval of the report is the annual ordinary meeting (Article 1135 of the Civil Code).
As for the majorities necessary to adopt it, the civil code does not provide for an ad hoc. For this reason the following applies:
- a) on first call the report is validly approved if the resolution, on this point, shows the favorable vote of the majority of those attending the meeting and at least 500 thousandths;
- b) in the second call the management document is approved with the favorable vote of at least one third of those present at the meeting representing at least one third of the value of the building.
Once approved, the statement takes on a particular binding form.
Approval of the condominium report, the consequences.
First and foremost, as with any other resolution, the approval of accounts is mandatory for all condominiums (Article 1137, first paragraph, of the Civil Code).
Not only: it is also worth remembering that pursuant to art. 63, first paragraph, disp. att. cc “For the collection of contributions on the basis of the state of distribution approved by the assembly, the director may obtain an injunction immediately enforceable, despite opposition”.
This is the well-known (infamous, to say) injunctive payment decree.
Not only that: if during the year of management the administrator has made advances on behalf of the condominiums and these are regularly exposed in the statement (for example with specific indication of the item in the financial summary, among debts to third parties), then the approval of the statement has the value of recognition of the debt towards the same administrator.
Nevertheless, it may happen that one or more condominiums intend to challenge the regularity of the accounting document. Except in the case of a shareholders’ agreement, the way indicated is that of challenging the resolution.
For the case of invalidity of the decision of the assize it will be able to challenge anyone who has an interest in it (even the favorable ones, see Cassation n. 6714/10) and at any time.
In the event of a voidable resolution, it must be challenged within 30 days of its adoption (for dissenters and abstainers) or communication (for absentees), as set forth in art. 1137 c.c. The reasons for the appeal are as follows:
According to the constant pronouncement of the Cassation, «the resolution of the condominium assembly that approves the administrator’s annual report can be challenged by absent and dissenting condominiums within the term established by art. 1137 of the Italian Civil Code, paragraph 3 not for reasons of merit, but only for reasons of mere legitimacy, a different form of invalidation pursuant to art. 1418 of the Italian Civil Code, since the individual condominium owner is not allowed to call into question the measures adopted by the majority other than in the form of an appeal against the resolution, to be considered, therefore, voidable and from which the appellant was entitled, as confirmed by the territorial court, to consider himself lapsed “(as of March 4, 2011, No. 5254).
As if to say: the choices made by the assembly are sovereign and can only be challenged if they have been adopted in a manner different to the law and not for their specific content.
For a long time and starting from a decision of the United Sections of the Cassation (sent. N. 4806/2005), it was stated that in relation to the approval of an allocation of costs, if the choice of the division had proved to be wrong, then the approval resolution had to be considered voidable, while in the case of derogation from the legal or regulatory criteria applied that decision had to be considered void. This approach seems to be questioned by a more recent orientation which would always consider the approval resolutions to be non-compliant (eg Cass. 20 December 2018 no. 33039) to be void.
Condominium report and review.
Article. 1130-bis of the civil code specifies that the assembly – with the majority vote of those present at the meeting and at least half of the value of the building – can appoint an auditor to check the accounting of the condominium relatively more specifically identified annuities. This prerogative, the standard specifies, can be exercised at any time.
Upon completion of the revision, the condominium may take the most appropriate decisions regarding the annuity subject to revision, subject to any rights of third parties that may be questioned and without prejudice to the right of appeal if the modification of the accounts following revision is considered illegitimate.
Source: Condominioweb
GECOSEI of Giuseppina Napolitano
