The condominium assembly can discuss and decide on topics indicated in theagenda sent with the notice of meeting, i.e. those were discussed if all the condominium members were present and no one raised preliminary objections to the discussion.
Let’s get into the merits of the issue starting from the question of one of our readers:
“Good morning Condominioweb editorial staff! I am writing to you regarding the following question. Assembly of my condominium: eight out of ten of us are present. Everyone agrees we discuss a topic and related expense not included on the agenda. The decision on his disposition, however, is not unanimous.
Result: those absent will say nothing, because it suits them, while one of those against the final decision wants to contest it because it was not included in the agenda. Something doesn’t add up to me: first he says let’s talk about it and then he backs out? It seems too comfortable like this.”
Our reader is right, let’s see why and what the reasons are consequences for the resolution on the point.
Expenditure approved by the assembly, but not on the agenda: the resolution can be challenged within thirty days
It is common ground that discussion on a topic not included in the agenda, pursuant to articles. 1137 cc and 66 provisions. att. cc makes the resolution voidable and as such challengeable. Jurisprudence has also expressed itself on the subject in the same way (see among many others, Cass. SS.UU. n. 4806/2005 and Cass. SS.UU. n. 9839/2021).
Pursuant to the paragraphs second and third of the art. 1137 cc against resolutions contrary to the law or to the condominium regulations, absent, dissenting or abstained condominium members (individually or jointly considered) may appeal to the judicial authority requesting their annulment within the peremptory deadline of thirty days. This termspecifies the rule starts from the date of the resolution for i dissenters or abstentions and from the date of receipt of the resolution for those absent.
The third paragraph specifies an aspect of no secondary importanceas we will see later, namely that the annulment action does not suspend the execution of the resolution, unless the suspension is ordered by the judicial authority at the request of the contesting condominium owner, possibly also with precautionary action.
Expenditure approved by the meeting, but not on the agenda: when the resolution cannot be challenged
The general rule However, it suffers from some exceptions: one of these has been identified by jurisprudence which on several occasions has stated when the failure to indicate a topic on the agenda does not make the resolution on it contestable.
We read, for example, in a ruling rendered by the Court of Romealso on the basis of more precedents of legitimacy than “the need for the agenda to have sufficient information content is, […]functional to put on interested parties in a position to adequately prepare themselves on the issues brought up for examination by the assembly and to evaluate the opportunity to attend or not. There is therefore nothing to prevent condominium owners, considering themselves sufficiently informed about the issues put up for discussion at the meetingdecide to deal with them, even if not indicated in the agenda“
As a result, the Court held that “the failure to indicate a topic, then resolved, in the agenda of a condominium meeting cannot be detected by the condominium member dissenting on the merits, if he has not previously objected at that time to the irregularity of the convocation (v. Cass. Section 2, Sentence no. 24456 of 11/19/2009; Cass. Section 2, Sentence no. 5889 of 04/20/2001” (Court of Rome 15 October 2019 n. 19739).
In this case, it is evident, only the absent condominium owners they will be able to contest the report in the ways and within the terms indicated by the art. 1137 cc
A further exception to the questionability of the resolution of an expense approved by the meeting, but not on the agenda is given by presence of all participants in the condominium that present at the meeting we decided to deliberate, regardless of the voting methods. This hypothesis eliminates in essence any possible contestability of the decision, for the reasons indicated by the aforementioned jurisprudence.
Agenda, meeting, issues relating to the management and conservation of the common parts of a building.
Expenditure approved by the meeting, but not on the agenda: payment and appeal
It may happen that a co-owner who is absent or disagrees with the possibility of discussing expenses not on the agenda decides to challenge the resolution. As previously mentioned, the appeal action does not suspend the validity of the resolution; this means that the expense attributable to it remains collectible:
- up to a measure of suspension of the resolution;
- in absence until decision on the merits.
Then it is advisable for the condominium owner to pay with reservei.e. specifying that the payment does not represent acquiescence with the decision that has been challenged (or is about to be challenged).
Given this reconstruction of the situation, bringing it back to the question submitted to us by our reader, it is possible to draw the following conclusions. Since from the facts presented it appears that all those present at the meeting they agreed to discuss the topic:
- none of the presentnot even those subsequently opposed to the expenditure can challenge the resolution;
- those who are absent could challenge it within the terms set out inart. 1137 cc
