The judge’s review of the condominium resolutions does not extend to the censures inherent to the advantageousness of the choice made by the assembly, this choice falling within the discretion of the assembly, as the sovereign body of the will of the condominiums (Court of Appeal of Messina, sentence n. 295/2023).
The judge cannot review the “advantageousness” of the resolution unless it is vitiated by an excess of power. Done and decision
A condominium appealed before the Court of Appeal against the sentence of the Court that he had rejected the application with which the plaintiff, today’s appellant, had requested that two shareholders’ resolutions were declared invalid: the first for violation of article 1123 of the civil code with regard to the allocation of expenses relating to the works to be carried out on the common areas also resulting from the inclusion, in the same, of works on parts of private property and for not having taken into account that such works were necessary and preliminary with respect to those to be carried out on the parts common; the second, for excess of power referred to behavior of the property manager which would have diverted and induced the assembly, with this second decision, to implement the first one (i.e. the assignment of the works to the construction company and the appointment of the construction manager) despite, for the latter, the proceeding of mediation to challenge the legitimacy of the work to be performed.
The appellants censured the sentence with two grounds of appeal and asked for its reform.
The Court of Appeal highlighted that, from the documents of the case and, in particular, from the minutes of the meeting, it appeared that the works on the common parts of the condominium had already been approved in a further previous resolution in which the same appellant had participated and given his consent and did not include private works.
In the first contested resolution it was quantified only the amount of the expense of the condominium works for the approval of which the unanimous consent was not therefore necessary and legitimate, therefore, was the subdivision ex art. 1123 c.c.; in the second there was no excess of power of the administrator since, pending the appeal, there is no obligation for the administrator to abstain from implementing the contested resolutions except for their suspension of their enforceability by the judge who had not intervened, therefore the reported defect did not exist.
As regards, then, the aspect that most interests here, i.e. the appellant’s objection on the failure to examine the merits of the questions, the court considered it unfounded because the union on condominium resolutions cannot extend to the evaluation of the merits nor to control the discretion available to the assembly as a sovereign body of the will of the condominiums, but must limit itself to a confirmation of legitimacy.
The appeal of the resolution referred to in Article 1137 of the Civil Code is not aimed at checking the opportunity or convenience of the solution adopted by the contested resolution but only at establishing whether or not the collective decision is the result of the legitimate exercise of the power of the assembly.
The judge, therefore, could not review the complaints made by the appellant concerning the advantage of the choice made by the assembly regarding the costs to be incurred for the work to be carried out on the common areas.
The trial court dismissed the appeal.
Final considerations
Court shared a consolidated orientation of the legitimacy jurisprudence (Cass. ord. n. 15320/2022, ord. no. 20135/2017, sent. no. 10199/202) for the quality the judge cannot be called upon to assess the “convenience” of the deal or the appropriateness of the choice or to review whether a overtime more onerous than another more advantageous is useless or irrational being, such assessments, the exclusive competence of the‘assembly.
The judge must only establish whether or not the resolution is the result of a legitimate exercise of the discretionary powers of the assembly and does not lead to an excess of power.