The rules inherent in the figure of the condominium administrator are contained in the civil code, which regulates it fully appointmentthe he confirms and the revocationas well as the obligations he is duties.
The administrator is linked to condominiums (and not to the condominium itself, which has no autonomous legal personality) from a contractual relationship of mandate (art. 1129 cc) by virtue of which it becomes “executive” organ of the condominium.
The obligations of the administrator They are punctually indicated by the civil code and those from whose non -compliance can derive a criminal liability derive from articles 1130, paragraph 4 and 1135, paragraph 2 cc, which, respectively, attribute to the administrator the task of carrying out the conservative documents relating to the common parts of the building and the power to order Extraordinary maintenance actsif urgent, to be performed without delay behind the initiative of the administrator who must refer to condominiums by convening the assembly.
Duties of intervention and jurisprudential interpretation
The provisions of art. 1130 cc, n. 4, he is indeed interpreted by the jurisprudence of legitimacy in the sense that the administrator weighs the duty to take action to Protection of rights inherent in the common parts of the buildingregardless of the specific authorization of the condominiums and regardless of that it is paid in the case of precautionary and urgent acts (Cass. Pen. 23 November 2015, n. 46385).
From the letter of art. 1135 cc, UC, it is also evident that the administrator has the right to provide for extraordinary maintenance worksin case
coat urgencyhaving to later inform the Assembly. It is indubitable that the elimination of an insidia or pitfall, deriving from the omitted leveling of the pavement in correspondence with a manhole mockery responsible for the exercise of a servitude of drainage for the benefit – of course – of the condominium building, represents both conservative intervention of the and maintenance of urgent order Also to protect the safety of passers -by and therefore decisive of the obligation to act pursuant to art. 40 cp, paragraph 2.
Responsibility and conduct to avoid incrimination
The Condominium Administrator has a specific guarantee position, pursuant to art. 40 cp, second paragraph, by virtue of which it has the obligation to activate to remove dangerous situations For the safety of third parties (in the present case represented by the omitted leveling of the flooring of the condominium building which had led to the fall of a passerby. Cass. Pen., 12 January 2012, n. 34147).
In condominium buildings, since art. 677 CP provides that even a person other than the owner is required to conservation, maintenance or repair of the building, the legal obligation to remove the danger deriving from the threatening ruin of common parts of the construction looms on the administrator, owner OPERELEGIS – except for different statutory or regulatory provisions – not only of the duty to pay the expenses relating to ordinary maintenance and the conservation of the common parts and services, but also of the power to order extraordinary maintenance works who are urgently covered, with the obligation to report them to the first assembly of condominiums.
The condominium administrator is criminally responsiblepursuant to art. 677 cp, where it does not activate in order to protect the common parts of the condominium building,
Airing to avoid damage to people and things, doing this regardless of a specific authorization by the condominiums (Cass. Pen., 23 October 2015, n. 46385).
The Condominium Administrator has one Specific guarantee positionpursuant to art. 40 cp, second paragraph, by virtue of which the obligation to remove any dangerous situation that derives from the ruin of common parts, through ordinary and extraordinary maintenance acts, preparing, in the time necessary for their concrete realization, the most suitable precautions to prevent the specific dangerous situation (this case in which the accused, administrator of condominium, was held responsible for a culpable lesions caused to a culpable injuries caused by Passing from the tiles detached from the facade of the property.
Note that eliminating the danger do not mean, necessarily, to have maintenance interventions performed but also simply prepare the most suitable precautions (e.g.
through the predisposition of barriers) to delimit the dangerous area to then deliberate the assembly regarding what to do. Or, in cases like the one that occupies us, to have the tiles removed that they risked falling.
Think of the administrator who, aware of the danger deriving from the possible detachment of the cornice, despite having informed the assembly, as most of the time happens, does not have the necessary funds in the condominium case to order that resolver intervention that is late due to the operation of the assembly body. In cases like these, the condominium administrator must, in order to go free from criminal liability, to intervene on the effects instead of the cause of ruin, that is, prevent the specific dangerous situation provided for by the incriminating standard by interdicting – where this is possible – access or transit in the dangerous areas.
Ultimately the representative of the condominiums will not be attributable Where, in the face of the immobility of the assembly, it is used to prevent the dangerous part of the building from causing a risk to the safety of people.
