The concept of conservative acts
The concept of conservative acts includes everything that aims to preserve the integrity and existence of the common heritageincluding in the concept in question the acts aimed at prevent or remove the danger deriving from the (imminent or already occurred) ruin, degradation, incorrect use of common areas (Cass. civ., 01/31/2018, n. 2436).
It seems useful to specify that art. 1130 of the Civil Code, no. 4, must include not only the conservative acts in the strict sense and necessary to avoid damage to this or that common part, but also the further judicial initiatives with respect to which the administrator retains the power – duty to act to safeguard the rights concerning the condominium building considered as a whole (in fact, therefore, the action referred to in art. 1669 of the Civil Code also falls within the scope of art. 1130 of the Civil Code, aimed at removing serious construction defects, in the event that these concern the entire condominium building and the individual apartments).
Common area improvement by the administrator: the story
Since the performance of conservative acts falls within the specific duties of the administrator, it is excluding the need for assembly passage. In fact, the conservation of common things or the regulation of their use is essential for the existence of the condominium and cannot be left to a resolution of the assembly, in which, due to contingent circumstances, a majority could form that pursues a specific interest contrary to that of the condominium community.
That said, it is important to establish whether the administrator can improve the use of the common area without prior approval from the assemblyThe issue was recently addressed by the Court of Cassation inordinance no. 15842/20243 of June 6th. In this case the condominium administrator, in agreen recreation areahad carried out, without any prior resolution of the assembly, deforestation works and construction of two reinforced concrete platformsplacing a wooden house there for use as a business sale of ice cream, drinks and confectionery products and equipped with electricity, water and sewer connection.
A condominium owner believed that those works were illegitimate and carried out in violation of articles 1108 and 1120 of the Civil Code; consequently, he asked the Court to ascertain the responsibility of the condominium administrator, with a sentence to the latter to remove them, with the restoration of the places to their original state. The Court agreed with the plaintiff and sentenced the defendant to restore the state of the places at his own expense.
The Court of Appeal held instead that the creation of the platforms in reinforced concrete carried out by the condominium administrator did not involve any modification to the condominium area intended for greenerysince such artifacts had been installed replacing wooden platforms originally located there and intended for recreational activities, so as to exclude the violation of art. 1120 ccbut, on the contrary, integrating such works a improvement in the use of common things.
The decision of the Court of Cassation
The Court of Cassation confirmed the validity of the second-instance judges’ reasoning. The supreme judges highlighted how the administrator’s intervention did not change the consistency of the area, which can still be used by the condominiums, nor its destination, since the condominiums can continue to benefit from the area in question for recreational and leisure purposes.
In any case, the condominium assembly expressly ratified the administrator’s actions by adopting a subsequent resolutionmoreover respectful of the majority prescribed by law for innovations (Cass. civ., sect. 6 – 2, 18/11/2019, n. 29924). In fact, the condominium has the financial statement of expenses incurred was approved by the administrator for the execution of the works to replace the “platforms” and, with a subsequent resolution, expressed the will to resist the action proposed by the condominium-actor.
