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Inheritance and Condominium: an Example of (Avoidable) Condominium Litigation
Reading this sentence of the Court of Rome (section V of 04/05/2020, n. 6847) one touches with one's hand an example of avoidable quarrel between condominiums, a phenomenon that, according to a reliable statistic, has reached considerable proportions, absorbing about a fifth of all pending civil cases in Italy, many of which could be resolved with common sense, as well as, of course, with the mediation tool, which, however, as we know, has historically had a low success rate (although it is mandatory pursuant to Legislative Decree No. 220 of 11.12.2020, the so-called reform of the condominium, which introduced the new art.71 c. disp. att. cc).
And instead we read that an administrator of a supercondominio of Rome was forced to ask for an injunction against the heirs of a condominium deceased for several years, and that the latter proposed opposition claiming that they had not been invited to the condominium meetings that they had deliberated about the expenses.
As a first resolution, the Court wands the opponents by recalling the principle (peaceful in jurisprudence) according to which the exceptions relating to the validity of the shareholders' resolutions invoked as titles of the alleged monitoring cannot be taken directly into consideration when opposing the injunction, which ends in fact the effectiveness in re ipsa of the resolutions is sufficient to justify the legitimacy of the judicial protection - both anticipatory and ordinary knowledge - of the creditor reasons pursuant to art. 1137 CC, according to which "the resolutions taken by the assembly pursuant to the preceding articles are mandatory for all condominiums. Against resolutions contrary to the law or to the condominium regulation, any absent, dissenting or abstained condominium can appeal to the judicial authority by requesting the annulment ... "and" the annulment action does not suspend the execution of the resolution, unless the suspension is ordered by the judicial authority ".
The rule has been declined by the jurisprudence in the sense that each condominium is required to pay the share of expenses referable to him, as resulting from the shareholders' resolution, regardless of any possible defect of the resolution taken, as this resolution is the title of credit of the condominium and , in itself, proves the existence of this credit and legitimizes the granting of the injunction, being able to be attacked only in the appropriate court by means of a victorious experiment of the protection of annulment, while "in the opposition procedure to an injunction decree issued for the collection of condominium contributions, the judge must limit himself to verifying the persistent existence and efficacy of the relative shareholders' resolutions, without being able to cross check their validity, incidentally, since this syndicate is reserved for the judge before whom these resolutions have been contested "(thus, between the other judgments, mentioned by the Court, Cass. n. 4672/2017 and n. 19938/2012). In the case in question, the condominium and his heirs had lapsed from the right to challenge the resolutions in question.
Without this clarification, the Tribunal (and here is the most interesting part of the sentence) recalls how it was peaceful in the case that the heirs in question had never informed the administrator that they had taken over the de cuius, and that the administrator, aware only of the death, he had sent all the convocations of the assemblies that had disposition regarding the expenses to the domicile of the latter and that the same had been regularly withdrawn.
The question is far from trivial, because there are at least three guidelines on the behavior that the administrator must follow when he has not been informed by the heirs of the succession.
According to an initial guideline (supported by a dating of the Court of Cassation: n. 1215/1969) the administrator informed of the death, but not of the devolution of the inheritance, should send the notice of convocation "collectively and impersonally" to the heirs of the the last domicile of the deceased, even if the year of death has passed, applying analogously art. 303 C.P.C ..
The thesis, however, does not hold up because the aforementioned article refers to the specific case of the death in the course of the case and it is not clear how it can be considered applicable outside the trial, especially since the rule speaks only of "heirs", while in the position of the deceased condominium, a legatee could well happen.
According to another more pragmatic orientation (also supported by a sentence of the Court of Cassation: No. 3798/78), however, the administrator would be freed by sending the notice to the last domicile of the deceased where, based on the id quod criterion plerumque accidit can probably be found someone, who is a successor or a legatee or in any case someone who can bring the notice to the attention of the interested parties, being sufficient that the notice is withdrawn by someone assigned to the last domicile of the deceased. It is, as has been said, a pragmatic remedy, characterized by a "fiction" being the warning addressed to a condominium whose death is already known, and which does not work when there is nobody at the address of the deceased condominium who can physically receive the notice.
Starting from this consideration, the Court of Cassation (sent. No. 6926/2017) proposes a third solution considering that the administrator has no obligation to do any research, and therefore to send any notice, until the heirs have shown him their quality of successors.
The latter ruling prevents some possible objections, observing:
- that art. 1136 C.C. provides that the assembly cannot deliberate unless it appears that all the condominiums have been notified, but that this rule assumes that the condominiums are known to the administrator;
- which in any case helps the analogy with the case of the non-communicated alienation (partially governed by art. 64, provision of the Italian Civil Code. It is true, in fact, that in the case in question the administrator is aware of the death , but in the absence of other elements, the administrator cannot know how the succession must be regulated, as a legitimate or testamentary succession may be possible, however an express or tacit acceptance must take place etc .; in a word, he cannot know who is entitled to receive the convocation and, consequently, to attend the assembly;
- that even the declaration of succession (theoretically traceable at the financial or mortgage offices) is not helpful because, as is known, it has only fiscal purposes and remains irrelevant for the purposes of accepting the inheritance; is
- that, finally, the legitimacy (and certainly there is no obligation) of the administrator to request the appointment of a trustee of the inheritance pursuant to art. 528 C.C ..
The Court of Rome does not take a position around the different guidelines, while showing that they know them, because in any case, by sending the communication to the domicile of the deceased, the administrator either acted correctly (as per the second orientation cited) or even went beyond his duties (as per third orientation) and therefore has quietly deliberated on the rejection of the opposition.
It is however singular that the Court did not cite the source of the obligation of the condominiums to provide the necessary information to the administrator. Ben the judge could have remembered the art. 1130 c.c. point 6) (modified by law 220/2012, the aforementioned reform of the condominium), which established the condominium registry, a register in which, among other things, the general information of the owners and holders of real rights is kept of enjoyment (therefore also of the tenants of rental contracts) and of the cadastral data of each apartment. The same article specifies that the register must be updated every time changes occur and that they must be communicated to the condominium administrator within sixty days.
The heirs could, in essence, spare themselves the opposition and the consequent expenses, caused only by their negligence in informing the administrator of their supervening status as condominiums.
Gianfranco Di Garbo is a lawyer active in civil and commercial litigation, including domestic and international arbitration.
Born on 30.5.1951 and graduated with honors in jurisprudence in Genoa in 1972, he completed his studies attending to programs at the London School of Economics (London) and the Academy of American Comparative Law (Dallas).
Gianfranco has been a member of the bar since 1977 and has been a member of the Special Register of Higher Courts since 1993.
From 1985 to 2019 he was international partner of the Milan office of the international law firm Baker & McKenzie, of which he was managing partner from 1995 to 1998 and from 2000 to 2003, coordinator of the Labor Law department from 1988 to 2010 and coordinator of the Litigation group (ordinary and arbitration) from 2012 to 2019.