When you think about challenging a condominium resolution, it immediately comes to mind that this right only applies to condominium members who oppose the decisions taken by the assembly. However, there are situations in which the administrator may also have an interest contrary to what the assembly has decided.
For example, it may happen that the assembly does not recognize a salary or that it establishes it at a lower amount than expected.
In these cases, can the administrator challenge a condominium resolution?
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The regulatory framework
Article 1137 of the Civil Code clearly establishes that only dissenting, absent or abstaining condominium members can challenge the resolutions of the condominium assembly. The administrator, being a third party with respect to the condominium members, would therefore seem to be excluded from this right.
However, the rule applies mainly to resolutions that concern the rights and obligations of individual condominium owners, not necessarily the administrator. The issue becomes more complicated when a resolution directly affects the economic or professional interests of the administrator, as in the case of failure to recognize an agreed compensation or a reduction of the same.
In such situations, although Article 1137 does not expressly provide for it, the administrator may have a concrete interest in contesting the resolution, since it affects his role and prerogatives.
This raises the question: is there any room, in these cases, for the administrator to intervene legally against a resolution?
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Voidable resolutions and null resolutions: an essential distinction
To understand if and when the administrator can challenge a condominium resolution, it is essential to distinguish between voidable resolutions And null resolutions. This distinction is crucial because it determines the seriousness of the defect affecting the resolution and, consequently, the possibilities of appeal.
The voidable resolutions are those that, even if they present irregularities or defects, can be remedied by the assembly itself, if it decides to confirm them in a subsequent meeting. In these cases, the administrator has no power of appeal. He can only invite the assembly to review the decision, proposing a modification or cancellation, but if the assembly confirms the resolution, the administrator must respect the decision and cannot proceed further.
The situation is different for the null resolutionswhich present serious and irremediable defects, such as the violation of mandatory rules or the adoption of decisions that are completely outside the competence of the assembly. In these cases, the resolutions are affected by absolute nullity and can be challenged even beyond the thirty-day deadline provided for voidable resolutions.
In fact, nullity makes the resolution invalid from the beginning and anyone who has an interest in it, including the administrator, can challenge it.
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The administrator and invalid resolutions: the possibility of appeal
In the case of invalid resolutions, a glimmer of hope opens up for the administrator. Although Article 1137 of the Civil Code does not explicitly grant him the right to challenge condominium resolutions, other provisions of the code, in particular Articles 1418 and 1421, offer a legal basis for the challenge even by parties other than the condominium owners.
These articles regulate the nullity of contracts and establish that, in the presence of such a serious defect, anyone with an interest can act to enforce the nullity.
Although Articles 1418 and 1421 concern contracts, case law has applied these provisions by analogy to condominium resolutions. In this way, it is recognized that, faced with a null resolution, even the administrator, if directly involved and harmed in his rights or interests, may have the right to act to challenge it.
This principle has been confirmed in several rulings, which have highlighted how nullity makes the resolution contestable by anyone who has an interest in it, without limitations to the sole sphere of condominiums.
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Application of case law: the role of the administrator
The analogous application of the rules on the nullity of contracts to condominium resolutions has therefore opened the possibility for the administrator to challenge a null resolution. This occurs especially in cases where the resolution directly affects his rights or professional interests.
A typical example may be a resolution that unlawfully reduces the director’s compensation or that does not recognize the reimbursement of expenses incurred by him in the exercise of his duties. In situations such as these, the director has a direct and concrete interest, which legitimizes him to challenge the resolution since the assembly decision has repercussions on crucial aspects of his office. Faced with such situations, judges have repeatedly recognized the director’s right to assert the nullity of the resolution.
However, it is important to remember that this power is limited to void resolutions only. For voidable resolutions, as seen above, the administrator can only invite the assembly to review the decision, but cannot act independently in court.
