CONDOMINIUM RULES IN ITALY

External view of several adjacent buildings.

Ultimo aggiornamento 15 Maggio 2024 da VetrinaFacile.it & Redazione

Condominium Rules in Italy

In Italy, the condominium must establish shared rules: condominium rules. As in any other community, to ensure the proper functioning of the condominium, participants must establish specific regulations.

Article 1138 of the Civil Code specifies that the condominium is obligated to establish regulations if there are more than 10 participants; otherwise, its establishment is optional. The regulations can be contractual in nature or voted on by the assembly. In the latter case, if the necessary quorum for the approval of the resolution is not reached, each condominium can resort to the judicial authority, which will compel the community to establish regulations.

Contractual and/or external regulations

Condominium rules in Italy: the contractual regulation, also known as “external,” is usually prepared by the company that built the building and is signed by all the property owners involved. In addition to regulating, through regulatory norms, the use of common areas and the division of expenses, this type of document – precisely because of its contractual nature – can impose limitations on the subjective rights of individual condominiums.

For example, regarding the use of shared parts over those of exclusive ownership. To modify these provisions, the unanimous vote of the owning condominiums is always required. Regarding the modification of regulatory norms, such as the prohibition of parking bicycles in the courtyard, the favorable vote of the majority of those present at the assembly, representing at least half the value of the building, is sufficient.

Breaking a contractual regulation is therefore very difficult. Not even the provisions of the Civil Code can challenge the rules contained in the document. An exception is made for the so-called “non-derogable rules” along with all regulations issued by higher authorities such as the State, Regions, and Municipalities, to which the contractual regulation must also adhere.

Assembly Regulation

In the case where a building has more than 10 condominiums but lacks a contractual regulation, the document must be mandatory approved by the assembly, with a number of votes representing the majority of those present and at least half the value of the building. The same quorum is required for any eventual and future modifications.

The assembly regulation must be attached to the minutes register of the assemblies and, unlike its elder sibling, it cannot foresee any kind of limitation but only regulate the use of common things and the distribution of expenses for their maintenance.

Furthermore, case law has specified that the freedom to approve the assembly regulation, in the event that it contains norms contrary to the law, can be challenged by each owning condominium. This must happen if the dissenting condominium owner participated in the vote, within 30 days of approval; otherwise, if the condominium owner was absent, within 30 days from the receipt of the registered letter sent by the administration, containing the minutes of the assembly.

Derogable and non-derogable norms

The provisions of the contractual condominium regulation, although already quite solid, cannot override some non-derogable norms contained in the Civil Code, precisely in articles:

  • 1118, paragraph 2 – rights of participants over common parts;
  • 1119 indivisibility of common parts;
  • 1120 innovations;
  • 1129 appointment, revocation, and obligations of the administrator;
  • 1131 representation;
  • 1132 dissent of condominiums regarding disputes;
  • 1136 establishment of the assembly and validity of resolutions;
  • 1137 challenging resolutions of the assembly.

As a result, for example, all matters related to the distribution of expenses can be derogated from by a contractual regulation based on article 1118, paragraph 2 of the Civil Code, then “the condominium cannot waive its right over the common parts”, while it may be possible in certain cases to forego their use. Thus, disconnecting the centralized heating system is permitted, but the operation must not result in imbalances and additional expenses for other condominiums. Other norms of the Civil Code, on the contrary, are derogable and therefore can be modified by the contractual regulation.

Sanctions

Those who do not comply with condominium rules – whether contained in the assembly or contractual regulation – may be required to pay a penalty. Article 70 of the implementing provisions of the Civil Code provides that “for violations of condominium rules and therefore – the condominium regulation – a penalty payment of up to €200 may be established, and in case of recurrence, up to €800. The amount is allocated to the fund available to the administrator for ordinary expenses.”

The Court of Cassation (January 16, 2014, no. 820) has clarified that the possibility of imposing fines must be provided for by the “condominium rules” condominium regulation, which in any case cannot contain “sanctions other than pecuniary ones, obviously punitive.” Previously, Law Decree 145/2013 clarified that the penalty must be imposed by the assembly and not by the administrator, who decides with the favorable vote of the majority of those present, representing at least half the value of the building. The fined condominium owner, however, has 30 days to challenge the resolution.

Written Regulation

Condominium rules in Italy: an issue that is highly debated concerns the form of the condominium regulation, and in particular whether its effectiveness is subject to written form. The Court of Cassation intervened on the matter (December 30, 1999, no. 943), stating that…

… a condominium regulation not contained in writing – is inconceivable – because the application of its provisions, sometimes of uncertain interpretation, and its challenge would be difficult if not impossible in the absence of documentary reference.

To strengthen this orientation, Article 1138 of the Civil Code provides for the transcription of the regulation – condominium rules – in the register mentioned in Article 71 of the implementing provisions of the Civil Code, deposited with the professional association of building owners. Article 1136 of the Civil Code also presupposes that “minutes of the assembly meetings are drawn up to be transcribed in the register kept by the administrator”, and this would also apply to the resolution approving the regulation by majority vote.

According to the Supreme Court

According to the Supreme Court, “writing constitutes an essential element for its validity in effect of a provision that foresees its probative relevance only, presupposing this, for its exceptional nature, an express regulatory provision in the specific case lacking.” Furthermore, written form for the validity of the contractual regulation is beyond discussion, as its clauses affect the rights that condominium owners have over exclusive or common property units.

Regarding modifications to the regulation, the judges have also observed that «it is undisputed that the same form (written) is required for its modifications because these, resulting in the insertion of new clauses in place of the original document, must have the same requirements as them. Written form is indispensable if the variations concern the clauses of a contractual regulation that imposes a limitation on the property rights of the condominium owners, as these, according to case law, constitute real burdens or easements to be transcribed in the land registry for opposability to third-party buyers of apartments in the condominium building (judgments No. 1091/1968, No. 2048/1968, No. 2048/1970).»

Non-derogable norms of the civil code

  • Article 1118, paragraph 2 – The condominium owner cannot waive their property rights over common parts; they can, in some particular cases, waive their use (for example, disconnecting the centralized heating and air conditioning system).
  • Article 1119 – Common parts can only be divided with the consent of all condominium owners.
  • Article 1120, paragraphs 1, 2, and 3 – Condominium owners can make innovations for the improvement of more comfortable use or better performance of common things. The majorities required to decide vary depending on the type of work. The administrator must convene the assembly with specific procedures when deciding on innovations facilitated by the law because they are of public utility.
  • Article 1120, paragraph 4 – Some innovations are prohibited unless approved unanimously.
  • Article 1129, paragraph 1 and 12 – The administrator, upon accepting the appointment, must provide a series of data and ensure transparency in their management, allowing consultation of documentation at any time. They must specify their fee.

Condominium rules in Italy: other articles

  • Article 1129, paragraph 6 – Eliminates the obligation of the condominium current account.
  • Article 1129, paragraph 7 – The former administrator must hand over all documentation in their possession to the new administrator and take necessary steps to avoid prejudice to the interests of the condominium.
  • Article 1129, paragraph 8 – The administrator must take action for the forced collection of sums from defaulters.
  • Article 1129, paragraph 9 – The assembly is convened annually for the appointment and revocation of the administrator.
  • Article 1129, paragraphs 10 and 11 – The revocation of the administrator can be decided at any time and for just cause without compensation for damages in cases specified by the judge or the assembly itself.
  • Article 1131 – The administrator, being responsible for representing the condominium in legal matters, must promptly communicate citations and measures unrelated to their duties.
  • Article 1132 – Criteria are established for a condominium owner to dissent from legal disputes, including the requirement that the dissenting owner must still contribute to the legal expenses.
  • Article 1136 – Criteria are set for the assembly in first and second summons and the majority required for resolutions. The assembly cannot deliberate if all entitled parties have not been summoned. The assembly register must be maintained.Article 1137 – Rules are established for the legal challenge of assembly resolutions by absentees, dissenters, or abstainers.

Non-derogable norms contained in the implementing provisions

  • Article 63, paragraph 1 – The administrator can obtain an immediately enforceable injunction against defaulters.
  • Article 63, paragraph 2 – Third-party creditors can take action against paying condominium owners only after doing so against defaulters.
  • Article 63, paragraph 2 – The administrator can suspend services to the defaulter.
    Article 63, paragraphs 4 and 5 – The purchaser of a real estate right in a condominium is jointly liable with the successor for the payment of expenses for the current and previous year, unless they transmit to the administrator an authentic copy of the purchase deed.
  • Article 66, paragraphs 1 and 2 – The assembly can be convened on an extraordinary basis by the administrator or requested by two condominium owners representing one-sixth of the value of the building; in its absence, each condominium owner can do so.
  • Article 66, paragraphs 2 and 3 – The notice of convocation must be communicated according to the prescribed forms; otherwise, the resolutions are voidable.
  • Article 67, paragraph 1 – Rules for delegations at the assembly are established.
    Article 67, paragraph 2 – If the apartment belongs to multiple co-owners, they have the right to a single representative at the assembly.
  • Article 67, paragraphs 3 and 4 – Rules for the assembly of the super-condominium are established.
  • Article 67, paragraph 5 – The administrator can have voting delegations.
  • Article 67, paragraphs 6, 7, and 8 – It is determined when the usufructuary has the right to vote instead of the bare owner.
  • Article 69 – Cases in which it is possible to modify or rectify thousandths in the assembly or in court are established.

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