Condominium contract: illicit behavior of the administrator


Emma Potter

Tender and acceptance of the construction company's contractual proposal not compliant with the shareholders' will

It is possible that the assembly you accept a contractual proposal of a construction company without any objections. By virtue of this approval the representative power is vested in the administrator in the stipulation of the procurement contract for the execution of those works.

However, it is not uncommon for the condominium meeting you don't accept purely and simply such a quote but decides to add further elements, such as a completion date, a penalty clause for delay or other agreements. Such determination it is valid as a contractual counter-proposal that the condominium administrator must submit to the contractor and, in the event of its refusal, reconvene, if necessary even urgently, the body responsible for deliberating the will of the collective body.

AND the behavior of the administrator who accepts the contractor's original proposal is illicit (by signing the procurement contract), ignoring the will of the assembly which wants to stipulate the procurement contract under different conditions. This behavior integrates the extremes of one responsibility of the condominium administrator who has not fulfilled his mandate with the required diligence and expertisereplacing the different will of the condominium, sanctioned in the minutes of the meeting, with its own and expressing towards the contractor of the works, the consent to the conclusion of a contract which had not, however, been expressed by the condominium (which had put forward another and different counter-proposal towards the contractor).

Naturally, it is not possible to speak of failure of the administrator if the condominium, in the event of the contractor's refusal to add the pejorative clauses to his detriment, has decided to purely and simply accept the contractual proposal that had already been received.

Assignment to unauthorized consultants

The Supreme Court stated that it is the contract in which the administrator independently assigns the task of assistance in drafting a contract to a lawyer is unenforceable against the condominium of procurement for extraordinary maintenance workof the amount of over two hundred thousand eurosdetermined by a municipal ordinance imposing urgent works on the facade of the building (Civil Court of Cassation, section VI, 17/08/2017, n. 20136).

It must be taken into account, in fact, that i powers of the condominium administrator and the assembly are precisely delineated by articles 1130 and 1135 ccwhich limit the attributions of the former toordinary administrationwhile they reserve decisions regarding the latter to the latter extraordinary administration; nor can the third party (consultant or supplier) invoke the possible urgent nature of the service commissioned from him by the administrator, with this assumption being the basis, pursuant to art. 1135 cc, last paragraph, the administrator's right to reimbursement of expenses within the scope of the mandate relationship. In the case examined, the alleged assignment received by the actor was certainly not to be considered urgent, as it was not connected to an urgent intervention, which could not be postponed over time.

More recently it has been stated that the provision of consultancy for the verification of the requirements for access to the Superbonus, does not fall within the duties of the administrator pursuant to art. 1130 cc – and, in particular, it does not fall within the category of “preservation acts” pursuant to art. 1130 n. 4) cc – therefore, to be enforceable against the condominium, it requires prior authorization from the assembly or subsequent ratification by the same (Trib. Pavia 30 January 2024 n. 238).

Communication of the data of defaulting condominiums to the contractor

Based on article 63 disp. att. cc the administrator is required to communicate the data of the defaulting condominium owners to the creditors who are not yet satisfied who contact him.

The Court of Campobasso ordered the condominium administrator to communicate to the contractor the names and personal data of the defaulting condominiums relating to the credit claimed (with details of the unpaid debt items in thousandth proportions). Furthermore, it condemned the condominium pursuant to article 614 bis cpc to pay a sum for each day of delay in the execution of said communication (Campobasso Court 10 November 2023 n. 851).

It must be considered that the administrator cannot satisfy the creditor's request with the transmission of a simple summary statement of the debt situation. In fact, even if the art. 63 available att. cc speaks generically of “data”, it must be included in this notion the name, surname, tax code and address of each of the defaulting condominium owners (as resulting from the condominium registry referred to in art. 1130, n. 6, cc), as well as the amounts owed by each of them and not paid to the condominium with the respective thousandths of competence. It is important to highlight that failure to indicate the thousandths of ownership would not allow the creditor any feedback regarding the correctness of the share owed by the individual condominium owners.