Challenging a condominium resolution can be a necessary step to protect your rights within a condominium. Often, decisions taken by the condominium assembly may not be shared by all condominium members, and in some cases may even be illegitimate.
But how can one proceed correctly to challenge a resolution? What are the times and methods to follow?
This article will provide a comprehensive and detailed guide on how to challenge a condominium resolution, offering practical advice and clarifications on current regulations.
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Analysis of the resolution
Before proceeding with the appeal, it is essential to carefully analyze the resolution that you intend to contest. The resolution must be examined to verify whether there are defects of form or substance.
Formal defects may include the failure to summon all condominium members, while substantive defects concern the violation of legal provisions or condominium regulations.
The main relevant legal provisions are theArticle 1137 of the Civil Code, which regulates the challenge of resolutions, and theArticle 1105which regulates decisions on the management of common things.
Article No. 1105 Civil Code
AdministrationAll participants have the right to participate in the administration of the common property.
For acts of ordinary administration, the resolutions of the majority of participants, calculated according to the value of their shares, are mandatory for the dissenting minority.
For the validity of the resolutions of the majority, it is required that all participants have been previously informed of the object of the resolution.
If the necessary measures for the administration of the common thing are not taken or a majority is not formed, or if the resolution adopted is not carried out, each participant can appeal to the judicial authority. This authority decides in the council chamber and can also appoint an administrator.
An accurate preliminary analysis is essential to understand the real chances of success of the appeal.
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Grounds for the appeal
The reasons for challenging a condominium resolution can be different. Among the most common are the failure to convene the meeting according to the established methods, the adoption of resolutions contrary to the law or the condominium regulations, and the infringement of the rights of individual condominium owners.
It is important that the reasons are well founded and supported by concrete evidence. Otherwise, the appeal could be rejected by the judge.
Among the most frequent violations of the law are those relating to articles 1117 and following of the Civil Code, which regulate the rights and duties of condominium owners.
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When is a meeting void or can it be cancelled?
A condominium meeting can be considered null or voidable in various circumstances, mainly based on the presence of defects of form or substance.
A meeting is void when it has not been convened according to the procedures established by law or by the condominium regulations, for example, if all condominium members have not been invited or if the convocation has not been carried out within the established deadlines.
Additionally, a meeting may be void if decisions are made on matters not included in the agenda.
Voidability, on the other hand, occurs when the resolutions adopted violate laws, regulations or individual rights of the condominium owners. For example, a resolution that modifies the thousandths of the property without the unanimous consent of the condominium owners is voidable.
Another case of voidability concerns decisions taken with a majority that does not comply with the requirements of current legislation. In both cases, the appeal must be filed within 30 days, as provided for by Article 1137 of the Civil Code.
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Times and methods for appealing
To challenge a condominium resolution, it is necessary to strictly respect the times and methods established by law.
According to Article 1137 of the Civil Code, the appeal must be filed in 30 days from the date of the resolution for condominiums present at the meeting, or within 30 days of communication of the resolution for absent condominiums.
The appeal must be presented through an appeal to the competent judge, accompanied by the necessary documentation, which may include minutes of the meeting, copies of the communications sent and any other relevant evidence.
For example, if a condominium meeting decides to carry out extraordinary maintenance work without having previously approved it with the required majority, a condominium member can challenge the resolution within 30 days of its adoption, if present, or of its communication, if absent.
It is important to include in the appeal documents such as the notice of the meeting, the minutes of the meeting and any communications between the condominium owners and the administrator. These elements can demonstrate any procedural or substantive irregularities.
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Legal procedure
The legal procedure for challenging a condominium resolution involves filing an appeal with the court. The appeal must state the reasons for the challenge and request that the resolution be annulled. Once the appeal is filed, the judge will set a hearing to consider the case.
During the hearing, the parties will be able to present their arguments and evidence in support of their respective positions.
For example, a condominium owner who challenges a resolution can bring testimonies from other condominium owners, documents that demonstrate the failure to convene the meeting according to the established procedures or evidence that highlights the violation of specific provisions of the law.
At the end of the trial, the judge will issue a ruling that may confirm or annul the contested resolution. If the resolution is annulled, the condominium may have to reconvene the assembly to deliberate on the matter again.
