In condominium, permanent delegation is admissible.<\/h4>\nAssumptions and characteristics for it to be effective.<\/h4>\n
Marco Borriello – Court of Nola\u00a027\/07\/2021<\/p>\n
With the delegation, the condominium who cannot or has no particular interest in attending the condominium assembly, can also participate in the\u00a0meeting\u00a0<\/u><\/strong>through a delegate.<\/p>\n Consider the case of the owner who is absent because he is busy for work reasons or the landlord who prefers to delegate his tenant to\u00a0meetings\u00a0<\/strong>in which decisions of an extraordinary nature do not have to be taken.<\/p>\n In these as in other cases, the proxy is issued in conjunction with the\u00a0convocation\u00a0<\/strong>received.\u00a0If it is then deemed appropriate by the interested party, it is renewed at the next meeting.<\/p>\n Instead, in the case dealt with by the recent sentence no.\u00a0457 of 02 July 2021 of the Court of Ferrara, the delegate in question had been the recipient of a\u00a0permanent\u00a0<\/strong>delegation\u00a0<\/u><\/strong>.\u00a0In particular, the delegating party ordered that the person in question participate in ”\u00a0all the ordinary and extraordinary assemblies\u00a0<\/em><\/strong>of the property complex called …,\u00a0ratifying as of now every assembly decision approved by the same\u00a0<\/strong><\/em>“.\u00a0\u00a0<\/strong>\u00a0\u00a0<\/em><\/p>\n Therefore, the Emilian magistrate was called to answer the following questions: in a condominium, is it possible to delegate someone to participate in the assemblies with a permanent proxy?\u00a0If so, what are the legal conditions for which a delegation of this type would be valid and effective?<\/p>\n First, however, let’s try to understand what happened in the story under consideration.<\/p>\n The written proxy can be permanent, a vademecum sentence: the concrete case<\/strong><\/p>\n The dispute arises following a resolution of the shareholders’ meeting in October 2019, in which the office of the director in office is revoked and the new representative appointed.<\/p>\n According to the plaintiffs’ thesis, the contested decision was adopted in disregard of the quorum and the majorities provided for\u00a0by art.\u00a01136 cod.\u00a0civ.\u00a0<\/u><\/strong>Furthermore,\u00a0a person with a permanent proxy had participated\u00a0in the\u00a0<\/strong>vote\u00a0<\/u><\/strong>, so mistakenly formed\u00a0.\u00a0\u00a0\u00a0\u00a0<\/strong><\/p>\n This, according to the petitioners, was not regular, as it was an act that did not comply with the provisions of\u00a0art.\u00a067 avail.\u00a0att.\u00a0cod.\u00a0civ.<\/u><\/strong><\/p>\n The Court of Ferrara, having examined the documents, agreed with the plaintiffs, effectively recognizing a defect in the majority with which the contested assembly had expressed itself.\u00a0Despite this, it expressed\u00a0a favorable opinion on the admissibility\u00a0<\/strong>of a permanent delegation.<\/p>\n Delegation in condominium: the law<\/strong><\/p>\n According to the art.\u00a067 avail.\u00a0att.\u00a0cod.\u00a0civ.\u00a0”\u00a0Each condominium can also attend the meeting by means of a representative, with a written proxy.\u00a0If the condominiums are more than twenty, the delegate cannot represent more than one fifth of the condominiums and the proportional value\u00a0<\/em>\u00bb.<\/p>\n Therefore, as confirmed by current jurisprudence,\u00a0each individual owner can be represented at the\u00a0<\/strong>meeting\u00a0<\/u><\/strong>, can vote through their delegate and will be considered present at the meeting for all purposes ”\u00a0Each condominium can therefore be represented at the meeting by other condominiums or third parties by conferring they have the power to represent him at the meeting and to exercise the right to vote in his name.\u00a0In this case, it will be considered present\u00a0<\/strong>for all purposes, with all the consequences regarding the regular constitution of the meeting, the legitimacy to challenge the resolution pursuant to\u00a0<\/em>art.\u00a01137 cod.\u00a0civ.\u00a0<\/u><\/em><\/strong>(ex multis Court of Rome, section V, 6.4.2009) “.\u00a0\u00a0<\/strong>\u00a0\u00a0<\/em>\u00a0<\/em><\/p>\n Obviously, as specified by the Court of Ferrara, the lack of a written proxy entails the nullity of the assignment conferred on the delegate.\u00a0In this case, therefore, the delegating party’s participation will be considered as never having occurred \u00ab\u00a0Pursuant to the new paragraph 1 of art.\u00a067 avail.\u00a0att.\u00a0cc,\u00a0the delegate must have a “written proxy\u00a0<\/strong>“.\u00a0<\/em><\/p>\n In the absence of written form, the proxy is void, with the consequence that the condominium who granted the proxy cannot be considered present at the meeting\u00a0<\/em>“.<\/p>\n Finally, for the Emilian magistrate, permanent delegation is entirely admissible, since there is no ontological incompatibility with the provisions of art.\u00a067 avail.\u00a0att.\u00a0cod.\u00a0civ.\u00a0It is only a question of examining it, in the specific case, on the basis of the rules of the mandate to which reference is made.<\/p>\n Permanent delegation in condominium: the rules of the mandate apply<\/strong><\/p>\n According to the Supreme Court,\u00a0the delegation configures a\u00a0<\/strong>mandate\u00a0<\/u><\/strong>contract\u00a0<\/strong>between the delegating party and the delegate, therefore it is logical to refer to the discipline provided for by art.\u00a01703 et seq. Of the civil code \u00ab\u00a0The delegation configures a mandate contract, whereby the general mandate rules referred to in art.\u00a01703 and following of the Italian\u00a0<\/em>Civil Code, insofar\u00a0as they are compatible\u00a0<\/em>(Cass. Civ. 25.1.2016, n. 1234) “.\u00a0\u00a0<\/strong><\/p>\n Well, examining the art.\u00a01711, it is clear that\u00a0the agent\u00a0<\/strong>, specifically the delegate in the condominium,\u00a0must comply with the instructions\u00a0<\/strong>given by the delegator and cannot exceed the limits of the assignment received.<\/p>\n This, for example, could happen precisely on the occasion of a permanent delegation, if in the general mandate the acts to which the delegate can give his consent are not specified.<\/p>\n If this were to happen, however, it would always be possible for the principal to ratify the work carried out in the absence of a proxy.\u00a0This\u00a0ratification\u00a0<\/u><\/strong>could also take place in a free and, therefore, tacit form.<\/p>\n For the Court of Ferrara, in fact, \u00ab\u00a0that ratification can always be concluded\u00a0<\/em>also in free form\u00a0is indirectly confirmed by article 1712 co.\u00a0II cc, according to which the delay of the principal in responding after having received the communication of the completion of the managerial transaction implies acceptance, and this rule must be considered valid\u00a0even if the agent has exceeded the limits of the mandate\u00a0<\/strong><\/em>\u00bb.\u00a0\u00a0\u00a0<\/em><\/p>\n Therefore, it is assumed that the permanent delegation does not conflict with art.\u00a067 avail.\u00a0att.\u00a0cod.\u00a0civ.\u00a0and which conforms to the mandate scheme on which it is legally based.<\/p>\n Well, if it is too general and the acts on which the delegate has the right to express himself are not indicated within it, a ratification by the delegating party \/ co-owner will suffice to correct everything.<\/p>\n According to the Court of Ferrara, it could be found in the failure of the delegating party to challenge the meeting, despite the fact that the delegate has expressed a vote that does not conform to the mandate received.<\/p>\n This, obviously, not failing to consider that\u00a0only the delegating party has the power to render ineffective the act performed in excess\u00a0<\/strong>”\u00a0In fact, the jurisprudence agrees that in the absence of particular rules, the relations between the represented person and the representative who attended the meeting are governed by the rules of the mandate with the consequence that only the\u00a0<\/em>delegating\u00a0<\/u><\/em><\/strong>condominium\u00a0is entitled to assert any defects of the delegation\u00a0<\/em>(Cassation civ. n. 3952\/94) and not the other condominiums unrelated to this relationship (Cass. n. 99, Cass. N. 4531\/2003) “.\u00a0\u00a0\u00a0<\/em>\u00a0<\/em><\/p>\n Source:\u00a0https:\/\/www.condominioweb.com\/delega-scritta-assieme-condominio.18304<\/u><\/p>\n GECOSEI by Giuseppina Napolitano<\/p>\n
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