Failure to maintain the building, decision-making paralysis and intervention by the judge
The art. 1105 cc, fourth paragraph, allows each condominium owner to contact the judicial authority so that “appropriate measures” are adopted in the context of voluntary jurisdiction, but only in the presence of absolute inertia in the management of common property. The rule represents an exceptional remedy, designed to guarantee the continuity of the administration when the responsible bodies are unable to function.
Jurisprudence has clarified that this remedy is not a shortcut for the individual condominium owner, nor a tool to speed up decisions that the assembly is still facing. Instead, it is a device intended to operate only when management is paralysed, i.e. when it is not possible to take or carry out measures necessary for the conservation and enjoyment of the common areas (App. Rome 1 April 2025, n.2005). It is not enough for the assembly to proceed at times that the individual does not like; the communion must be truly incapable of deciding or carrying out what has been decided (Cass. Civ., section II, 20/04/2001, n. 5889).
Furthermore, the remedy only concerns the internal management of the common thing. It cannot be used to obtain convictions, assessments or provisions typical of contentious proceedings. The voluntary jurisdiction intervenes to replace the management body, not to resolve conflicts of subjective rights (in such cases the judge intervenes to unblock the management, not to resolve disputes).
In light of the above, it can be stated that the appeal is admissible only when: the assembly does not decide on the necessary work; no majority is formed; the administrator does not implement the resolutions adopted; management is blocked and there is no possibility of overcoming the stasis.
If, however, the administrator takes action, appoints a technician, acquires a report, prepares a metric calculation, calls the meeting and obtains formal approvals, the condition of inertia does not exist. Management is ongoing, even if it does not proceed according to the expectations of the individual condominium owner. In such cases, the appeal must be declared inadmissible due to lack of the conditions, because the pathological stasis that justifies the substitute intervention of the judge is missing.
In conclusion, the art. 1105 cc, fourth paragraph, is an extraordinary remedy, usable only when the condominium is actually at a standstill. When the condominium management is blocked and the necessary measures for the conservation and enjoyment of the common areas are not adopted or implemented, the condominiums can resort to art. 1105 cc and ask the court (in the context of voluntary jurisdiction) to intervene in place of the assembly. The judge can order the payment of the necessary sums, order the execution of the works and appoint the essential technicians. It is also possible to request that the legal costs be borne by the resistant condominium owners.
The Mayor’s intervention
The functions attributed to the mayor, as a Government official, also include the power-duty to adopt all the initiatives necessary to prevent and eliminate situations that pose a serious danger to public safety and urban security. By virtue of this competence, the mayor can impose on the condominium and individual condominium owners the execution of urgent and non-deferrable interventions, when these are indispensable to protect the safety of people and property.
In this regard, a recent decision by the Council of State deserves to be highlighted. The story began when part of the roof of an apartment building collapsed. The common stairwell also showed temporary shoring, a sign of instability already underway.
The Fire Brigade, who intervened on site, noted a situation of structural vulnerability such as to require the removal of a resident and the closure of the stretch of road in front of the building, considered dangerous for the transit of pedestrians and vehicles. The report was sent to the Municipality, which appointed a technician to carry out an urgent assessment. The professional excluded that maintenance interventions could guarantee safety, indicating the demolition of the compromised portion as the only solution.
On the basis of these findings, the mayor, as the authority responsible for the protection of public safety, adopted a contingent and urgent ordinance requiring the owners to immediately make the area safe, delimit the areas at risk, and demolish the unsafe part within five days.
The ordinance was notified to all condominiums, since the collapses had affected common parts of the building: roof, stairs, entrance hall, main walls, floors and load-bearing structures. In a condominium, these elements are co-owned by everyone, regardless of the location of the individual real estate units.
A condominium owner challenged the ordinance claiming that she did not own the collapsed portion and did not benefit from it. The Council of State considered the Municipality’s actions legitimate: the danger was serious and present, the technical expertise was adequate, the ordinance was proportionate and urgent. In any case, the Municipality does not have the duty to carry out a complex and timely verification and examination aimed at identifying, in the abstract, all the possible recipients of the same. The appeal was rejected and the TAR’s decision confirmed (Council of State 3 April 2026 n. 2736).
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