Resolution Derogating From Mandatory Rules: Why It Is Void

Some provisions of the Italian Civil Code on condominiums are mandatory: neither the regulation nor a meeting resolution can modify or disapply them, and a clause or decision purporting to do so is void, without effect from the outset. Article 1138, final paragraph, and Article 72 of the implementing provisions set the list of untouchable rules. Knowing them is essential for the manager and the owners, because a resolution derogating from one of these rules never consolidates over time and remains challengeable without limit by anyone with an interest.

What a mandatory rule means

In condominium law, derogable and mandatory rules coexist. The former set out a regime the parties may change by agreement or contractual regulation, for example the expense-sharing criteria of Article 1123, which apply unless otherwise agreed. The latter, instead, express principles the legislator wanted to place beyond the meeting's, and in many cases the owners' own, reach: no majority and, for certain rules, not even unanimity may derogate from them.

The reason is protective: these rules safeguard owners' individual rights and guarantee a minimum, transparent functioning of the condominium. Allowing their derogation would mean letting the majority compress positions the law intended to make unavailable.

The rules the regulation cannot derogate from (Article 1138)

Article 1138, final paragraph, provides that the regulation's rules may in no way diminish each owner's rights arising from deeds of purchase and agreements, and that in no case may they derogate from a precise group of provisions. These include, in particular:

• Article 1118, second paragraph, on the impossibility of waiving the right over common parts to escape expenses.
• Article 1119, on the indivisibility of common parts.
• Article 1120, on improvements.
• Article 1129, on the appointment, removal and duties of the manager.
• Article 1131, on the manager's representation.
• Article 1132, on owners' dissent regarding lawsuits.
• Articles 1136 and 1137, on the constitution of the meeting, majorities and challenging resolutions.

A regulatory clause or resolution purporting to change, for example, the majorities of Article 1136, or to compress the right of challenge under Article 1137, or to allow the waiver of expenses forbidden by Article 1118, is void.

The mandatory procedural and management rules (Article 72 implementing provisions)

Article 72 of the implementing provisions of the Italian Civil Code adds that condominium regulations cannot derogate from Articles 63, 66, 67 and 69 of the same provisions. These are rules on the collection of contributions and liability for debts, the calling of the meeting, representation and proxies, and the revision of the thousandths (millesimi) tables. Here too a clause or resolution disapplying them is without effect.

It follows, for example, that a regulation removing the notice period for calling the meeting under Article 66, or overturning the proxy limits set by Article 67, is not valid. The condominium's procedural framework is protected precisely to guarantee everyone the chance to participate and react.

Why derogation is void and not merely voidable

Breaching a mandatory rule is not a mere procedural defect, remediable by the passing of thirty days. It is a decision whose object conflicts with imperative rules, and for this reason it is void. The practical consequence is clear: the resolution or clause produces no effect, never consolidates and may be relied on at any time by any owner or interested party. A manager who implemented it would do so at their own risk.

Checking the regulation and resolutions before applying them

Many nullities arise from dated regulations or from resolutions approved without checking compatibility with mandatory rules. A preventive check avoids implementing decisions that have no effect. With AmministraPro the manager keeps the regulation, minutes and resolutions in an orderly archive linked to the meetings, so as to quickly find and check clauses and majorities applied. The features for meetings, documents and archive are described on /funzioni and the plans for every firm on /prezzi.