Direct action against a defaulting tenant in a condominium

Direct action against a defaulting tenant is one of the most frequent questions when a rented apartment builds up unpaid condominium fees. The administrator is tempted to act straight away against the person who occupies the unit and uses its services, but the law follows a different path. Understanding who is liable to the condominium and which tools remain avoids pursuing actions that are bound to fail.

The condominium has no direct action against a defaulting tenant

The administrator collects the contributions for the maintenance of the common parts and for services of common interest directly and exclusively from each owner. Against the tenant, who is not a party to the condominium relationship, the condominium has no direct action: the party liable to the condominium remains the owner of the unit. The fact that the lease places the ancillary charges on the tenant concerns the relationship between landlord and tenant, not the condominium.

Who is liable to the condominium

The party liable for the condominium fees is the owner, even when the unit is rented and even if the tenant has not paid what was due. The owner must therefore advance the sums to the condominium and then seek recovery from the tenant for the charges the contract places on them. The condominium acts against the owner, the owner acts against their tenant: they are two separate relationships.

The payment order and joining the tenant to the case

To recover the sums, the condominium can obtain a payment order against the defaulting owner, based on the approved allocation statement. The owner, in turn, can join the tenant to the case for the share of charges contractually theirs. It is the owner, not the condominium, who can directly involve the tenant in the proceedings: the condominium keeps its own claim against the owner.

Ancillary charges under law 392/1978

Article 9 of law 392/1978 places the ancillary charges on the tenant, that is the costs for services such as cleaning, lift, water, energy, heating and other common services, unless otherwise agreed, with a special rule for the concierge service. Payment is due within two months of the request, and the tenant has the right to obtain the specific breakdown of the charges and the allocation criteria before paying. These are the sums the owner can demand from the tenant. It is important to keep ancillary charges separate from extraordinary expenses and from structural maintenance, which instead remain the owner's responsibility: charging the tenant items that are not theirs invites disputes and makes recovery harder. A transparent allocation, stating the criteria, is also the condition the law sets for the tenant to be required to pay.

Eviction for arrears on ancillary charges

Failure to pay the ancillary charges can lead, under certain conditions, to termination of the contract. Arrears on ancillary charges become relevant when the unpaid amount exceeds the equivalent of two months' rent: in that case the landlord can start eviction proceedings for arrears. This is a tool available to the owner, not the condominium, and it operates on the lease relationship.

Curing the arrears

In the validation proceedings the tenant can cure the arrears by paying what is owed for rent and accrued ancillary charges, avoiding termination. The possibility of curing distinguishes arrears on charges from a simple breach and must be kept in mind when assessing the timing and outcome of the action.

The owner is always liable to the condominium: it is then up to the owner to seek recovery from the tenant.

What the administrator can actually do

Having established that the condominium acts against the owner, the administrator still has room to handle the situation well. They can remind the owner in good time, keep the allocation statement up to date and prepare the documentation needed for a possible payment order. They cannot, however, demand payment from the tenant or list them among the condominium's debtors, because the tenant is not a party to the relationship.

• Identify with certainty the owner of the unit, the only party liable to the condominium.
• Send reminders to the owner, not to the tenant.
• Keep the approved allocation statement ready for the payment order.
• Notify the owner of the arrears so they can act against the tenant.
• Separate ancillary charges from expenses due from the owner in the accounts.

A clear message to the owner, reminding them that they are the only party liable to the condominium, often speeds up recovery: it is in their interest to pay and then seek recovery from the tenant, avoiding payment orders and interest at their own expense.

Keeping arrears under control with software

Distinguishing the owner's debt from the charges due from the tenant requires clear allocations and an orderly schedule of deadlines. Management software links each unit to its owner and any tenant, keeps the allocations up to date and prepares the documentation for the payment order against the defaulting owner. AmministraPro manages allocations, reminders and arrears recovery in a single environment: you can see how it works on the features page or compare the plans in the pricing section.