Challenge of the administrator’s measures

The role of the condominium administrator

As is known, in recent years the role of the administrator of condominium has taken on a new connotation in the condominium area.

The condominium administrator’s duties include, in particular, the duty to respect and, consequently, to enforce the condominium regulations, to ensure peaceful coexistence between the condominiums.

To fulfill this duty, the administrator can hire measures which are mandatory for the condominium.

This power is provided for by art. 1133 of the Italian Civil Code which expressly allowsbuilding administrator to take mandatory measures for condominiums.

Specifically, it is a power that falls within the more general concept of condominium management, delegated by law to the condominium administrator.

In the following we will analyze the content of this power attributed to the administrator and the possible remedies available by the condominiums.

Duties and obligations of the condominium administrator

When addressing the issue of the power recognized to the condominium administrator to take measures also against condominiums or which are, in any case, mandatory for condominiums, we often find ourselves wondering if this behavior integrates a act of disruption.

It is not possible to provide an answer that could be valid in any situation.

This is because the case history is particularly wide and varied, especially in condominium contexts.

In general, however, it is possible to move in this direction: when any provision is adopted by the administrator in compliance with his powers-duties and the correct application of the condominium regulation, this behavior should not integrate a disturbance.

For example, if the condominium administrator asks the condominium to comply with the prohibition provided for by the condominium regulations not to post signs, plates without prior authorization from the meeting or to use stairwells and other common parts as a deposit for their personal effects, in this case, do not an act of disturbance can be configured against him.

Tasks of the condominium administrator

Before analyzing the tools available to condominiums against any abuses or acts contrary to the condominium rules and regulations, a distinction must be made between the measures taken by the condominium administrator as a representative of the condominium context by virtue of the mandate relationship and the decisions that a director can autonomously hire as he is not legitimized by any law or regulation.

This distinction is important, because it is preparatory to understanding the remedies that can be experienced.

Building administrator measures
In fact, if an administrator takes a measure autonomously, he is liable for this decision directly and personally, and in civil proceedings against a possible claim for damages.

The condominium administrator, in the cases in which it acts on the basis of the powers provided for by law or conferred by the condominium assembly, represents the condominium.

This means that the decisions made by an administrator are considered to be of the condominium, that is, directly referred to it.

How to contest a provision of the condominium administrator?

In the face of a measure taken by an administrator, the condominium is recognized, in any case, the power to contest such decisions.

In other words, the condominium is not left at the mercy of the choices and actions of the condominium administrator.

The latter are given the power to appeal in the assembly and possibly to appeal to the judicial authority.

Judicial challenge of condominium administrator measures
The choice to turn to the other condominiums or to sue is alternative and, in principle, for the reasons indicated below, also discretionary.

This means that the condominium that you consider injured by a provision taken by the condominium administrator, he can freely evaluate whether to try to find a solution in the context of the condominium or, in the most serious cases, whether to contact the judge competent for the matter and territory directly.

On the subject of condominium buildings, Article 1133 of the Civil Code provides for the right to appeal to the assembly against the administrator’s measures, but without prejudice of recourse to the judicial authority, and, therefore, does not make the right to judicial protection subject to prior recourse to the assembly (Cass. Civ., Section II, 22 June 2011, n. 13689).

Appeal to the assembly against the measures of the condominium administrator

A hypothesis in which it is certainly necessary to contact the condominium assembly to try to settle the conflict with the condominium administrator could be recognized when these perform acts in excess of their powers or with damage to the condominiums in contrast not with laws or regulations but with the mandate report.
Appeal of the assembly contesting the condominium administrator's measuresIn the various cases in which the measure taken by the condominium administrator is deemed to be harmful or contrary to the law or to the condominium regulation, both instruments of protection are considered practicable, that is, recourse to the judicial authority or to the condominium assembly.

It is good to keep in mind that recourse to the assembly does not suspend the operation and enforceability of the decision taken by the condominium administrator, which is the subject of the dispute.

How to establish recourse to the assembly against the measures of the condominium administrator?

Recourse to the shareholders’ meeting is not subject to a rigid term, unlike the cases in which recourse to the competent judicial authority is considered or is envisaged, in relation to which the term of 30 days starting from the date on which the provision became known, as required for the shareholders’ meeting resolutions pursuant to art. 1137 cc

Once the condominium administrator has been notified of the written appeal against a provision taken by the same, he is required to convene the assembly.

The appeal, it should be noted, can be presented by the individual condominium but also by the administrator himself, when he wants the assembly to approve and ratify his work.

Once the assembly is called, it has both the power to cancel or revoke the provision taken by the administration because it is flawed or beyond its mandate, and to adopt a new decision replacing the previous one and capable of managing and / or remedying the situation that is the subject of the dispute. .

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