The appointment of the administrator is mandatory when there are more than eight condominiums. This is established by art. 1129, paragraph 1, of the Civil Code which modified the previous rule, which had set the limit for the operation of this peremptory fulfillment in four condominiums, made such by the mandatory nature of the legislative provision.
At this point the problem arises of ascertaining whether the figure of the de facto administrator is compatible with these condominium realities and even more so in the case of super condominiums.
Active legitimacy of the administrator never formally appointed. Done and decision
The sentence that we are about to comment on is particularly articulated in that the monocratic judge has been called upon to rule on numerous issues, for which it is necessary to limit the examination of the provision to that of specific interest, highlighting that the Court of Turin with the judgment no. 1637 of 17 April 2023 partially accepted the questions posed by the actors.
In a situation of supercondominioformed by four condominiums, some participants of the same building and the condominium itself challenged a resolution of the assembly assumed by the assembly of the super condominium which, since time immemorial (50 years), was very informally administered by a de facto administrator who had never been officially appointed.
The subject of which called the ordinary meeting (for the approval of the final balance and the consequent estimate) subject to appeal, whose notice of convocation would have been received in a different way by the condominiums of the buildings forming part of the super-condominium.
during thepreventive assembly of the sub-condominium plaintiff the participants nominated their representative (who, among other things, was also a condominium), who should have voted in the general assembly according to the directives communicated to him by the condominium / principal: not to approve the budgets and indicate which future administrator of the condominium complex the same person who managed the sub-condominium.
This did not happen and the super-condominium’s resolution, as far as it was of specific interest, was challenged by the sub-condominium and by some participants for nullity of the convening of the general meeting, as carried out by a person who was not an administrator; for violation of the voting mandate by the contesting condominium and for failure to prove the representative power of the remaining condominiums participating in the super condominium meeting.
The supercondominium in the constitution objected, preliminarily, the lack of active legitimacy of the condominium to challenge the resolutions of the super condominiumsince this right is due only to the absent or dissenting condominium, while with reference to the unfaithful behavior of the representative of the plaintiff condominium, the question could not have any relevance towards the super condominium.
On the exception examined as a preliminary point, the Court, while noting that «it is undisputed that the administrator cannot challenge the resolutions of the condominium he administers, nor those of the super condominium of which the latter belongs, since the right of appeal is attributed by art. 1137 civil code to “every condominium”», considered theinconsequential exception for two reasons.
On the one hand, in fact, the administrator, with a unanimous vote, had obtained an express mandate from the assembly to challenge the resolution(s) passed by the super-condominium and, on the other hand, the plaintiffs were also some condominiums, who had acted jointly with their own condominium proposing the same request.
Coming to the reasons for the appeal, the monocratic judge did not find formal defects in the convening of the assembly, rejecting the application with multiple reasons, one of which perhaps not fully acceptable, when it was argued that in none of the assemblies held in the other condominiums had the the director’s failure to convene the general meeting.
As if to say that if the appeal of the resolution is proposed by a single condominium, the hinged action does not deserve consideration because no other condominium has proceeded in the same way.
As for the profile concerning the breach of the obligations of the agent/representative of the plaintiff, the Court essentially affirmed that the reasons that would have induced the person appointed by the condominium to represent him within the super condominium represented, in the perspective of a conflict of interest between the parties internal to it, only conjectures without concrete confirmation, just as there was no evidence of a possible conflict of interest between the condominium complex and the representative.
Finally, to invalidate the latter’s vote in the assembly of the super condominium, the plaintiffs would have had to demonstrate that the representative had disregarded the principal’s directives to satisfy an interest of his own and completely unrelated to his condition as a participant in the condominium.
Finally, the judge rejected the appeal also due to the alleged lack of representative power in the assembly of the super-condominium of the representatives of the sub-condominiums, since the defect could only be asserted by the representatives and not by a third party.
Final considerations
Of the various topics dealt with, the one concerning the characteristics of the super-block administrator who, objectively, had always worked without a specific mandate, arouses particular interest.
In this context, the circumstance that the super condominium had been administered continuously, for years and without complaints from the participants, was considered by the Court as proof of the groundlessness of the claim brought by the plaintiffs on the point.
In relation to the CD “de facto administrator“, identifiable in the person who manages the condominium without having had a formal investiture, it was stated (Court of Salerno 11 August 2022, no. 2808annotated by M. Borriello, in Condominioweb.com7 October 2022) that the possibility that in a condominium there may be a lack of administrator must be identified in two elements: theart. 1129, comma 6, cc. on the one hand and, on the other, the analogous reference to the rules governing joint-stock companies and which also recognize powers to the de facto administrator (Cassation, section 1, 8 October 2020, n. 21730).
Even the jurisprudence of the Court of Cassation in the past had expressed itself in this sense, having stated that it is possible to agree in the abstract to confer the office of director without using the written form (Cass., section 2, 20 February 2015, n. 3459) and that in the condominium area “the power of attorney conferring the power of representation can be verbal or tacit, and can result, independently from the formal meeting investiture and from the annotation in the special register referred to all’art. 1129 c.c.from the conclusive behavior of the condominiums, who have considered the administrator as such in all respects, usually addressing him in this capacity, without questioning the powers of management and representation of the condominium” (Cass., section 2, 4 February 2016, n. 3242).
Although it should be noted that the Court specified that the principle referred to cases prior to the entry into force of the 2012 condominium reform.
This clarification could lead one to believe that with the new rules there is no longer room for the hypothesis of the de facto administrator, considering that art. 1129, paragraph 14, of the Civil Code, upon acceptance of the assignment and its renewal, he must analytically specify, under penalty of nullity of the appointment itself, the amount that the condominium will have to pay as compensation for the activity carried out by the same .
Reasonably, this indication cannot be oral, while the doubt remains whether the absence of the administrator, referred to in art. 1129, paragraph 6. of the Civil Code is to be understood as a temporary absence, or can be interpreted in an absolute sense.
This interpretation, however, could conflict with the first paragraph of the same art. 1129 of the civil code which states that when there are more than eight condominiums, an administrator must be appointed, also by appealing to the judicial authority in the event of inaction by the assembly.
In conclusion, this should lead us to believe that the figure of the de facto administrator survives for condominiums that have fewer than eight participants, in which the administrative management is certainly less formal.