Condominium, variations and extra contract work
The administrator who, making use of the powers referred to in art. 1135 cc, paragraph 2, has taken the initiative to carry out extraordinary maintenance works characterized by urgencywhich actually occurs, spending, towards third parties, the name of the condominium, assumes a obligation directly referable to this, given that in this case the condominium must be considered validly represented.
On the contrary, if the works carried out by third parties at the disposal of the administrator lack the urgency requirement, the initiatives adopted by the administrator regarding extraordinary works do not create obligations for the condominiums, in the sense that they do not oblige them to pay, neither towards the administrator, nor towards the company that carried out the work. The latter, in fact, has the burden of check in advance regarding the full powers of the administrator to confer the task: if he does not do so, he cannot then make the consequences of his negligence fall on the condominium owners. So the contractor can always demand from the administratorwhen signing the procurement contract, a signed copy (by the same administrator) of the authorization resolution to the execution of the works and the signing of the contract.
The administrator should also take care to always carry with him and deliver to the contractor, when signing the contract, the resolution authorizing him to entrust the work to that company and to sign the contract, since, as we have seen, in the absence of said resolution (or a possible ex post ratification of what has been done), the administrator will have to bear the entire cost of the works.
What has been said regarding the approval of the construction methods and the price it's worth itObviously, also for the variations of the extraordinary maintenance work contracted by the condominiumvariations to the original agreed methods must also be authorized by the condominium assembly, always pursuant to articles. 1135, paragraph 1, n. 4, and 1136, paragraph 4, of the civil code (Cass. Civ., section II, 21 February 2017, n. 4430). With this in mind the administrator has no power to order non-contractual work of an extraordinary nature, nor to sign anything (be it a contract or a request to the DL or to the company) in the name and on behalf of the condominium, given that, in this case, the authorization resolution constitutes a unavoidable regulatory requirement of the procurement contract. Even in this case, the mandatory relationship is not referable to the condominium, as it is an act carried out by the administrator outside of his responsibilities.
Unjust enrichment: a recent case
A construction company, come on authorization of the assembly of a condominium, stipulated a procurement contract for the carrying out of renovation works in a block of flats. Once the work has begun and on the occasion of a site inspection carried out together with the works director appointed by the condominium, in order to coordinate the contracted works, they noted a degradation of the waterproofing sheath above the cornice of the top floor and infiltrations from it; the company communicated in writing by email, both to the director of works and to the administrator, the state of deterioration described above of the cornice and the façade of the top floor.
Following a new joint inspectionconsidering the danger of rubble falling onto the road below, the administrator he had a technical report drawn up and then authorized the Company to also carry out the aforementioned works (additional compared to those agreed in the procurement contract) and this to protect the safety of people and things, given the urgency and non-deferrability.
The DL then drew up the work completion report and testing certificate. Subsequently the company turned to the Court for the assessment of the credit and the condemnation of the condominium to pay for extra-contractual works, having not obtained the due amount, despite reminders addressed to the client. In any case the plaintiff asked in the alternative for a compensation for works for unjust enrichment.
The decision
The Court reiterated that, dealing with further and different works from those covered by the contract, the contractor would have to wait for authorization from the condominium before carrying out additional machining. Moreover, as the judge himself underlines, the works in question they could not be ordered by the administrator as they were non-urgent interventions. In fact, during the proceedings, no useful document was filed to support the urgency coming from qualified third parties (e.g. fire brigade report, union order, etc.).
As for the subordinate application pursuant to art. 2041 cc the judge recalled that undue enrichment must be characterized by unjust enrichment, by the impoverishment of others, by a causal link between the enrichment and the impoverishment (i.e. that the generating event is unique) and by the subsidiarity of the action, while, according to the most recent jurisprudence of legitimacy, the recognition of utilitas no longer appears essential.
Taking the above into account, the Court noted that the company carried out the work indicated in the final metric calculation (equal to €23,247.19), without timely and specific objection from the condominium, neither with reference to the execution of all the items analytically reported in the final balance, nor with reference to the prices charged. For the Neapolitan judge the condominiumTherefore, undoubtedly benefited from the work carried out by the company, with the consequent obligation to compensate the plaintiff.
The amount of compensation, considering the costs incurred by the company for the execution of the works, was settled equitably (not being able to correspond to the entire price of the contract in the absence of a valid contract) in the amount of €15,133.81. Please remember that the amount must be calculated on the recognized sum revaluation (since it is a debt of value) and the legal interests from application to payment.
