Resolution on a non-common asset: nullity and lack of powers

When the owners' meeting resolves on an asset that is not common, for example an area exclusively owned by one owner or by a third party, the decision exceeds the meeting's powers. In these cases case law speaks of nullity of the resolution for total lack of attributed powers, not mere voidability. The practical consequence is significant: nullity may be raised by anyone with an interest and without the thirty-day deadline that applies to challenging voidable resolutions.

What the common assets are

Article 1117 of the Italian Civil Code identifies the common parts of the building: the land it stands on, the foundations, the load-bearing walls, the roofs and flat roofs, the stairs, the entrance halls, the porticoes, the courtyards, the common installations and services, unless the title provides otherwise. Only on these assets, and on the collective interests connected to them, does the meeting have power to resolve. What is exclusively owned by an individual, or does not belong to the condominium, falls outside the decision-making scope of the collective body.

The deed of purchase and the contractual regulation may widen or narrow the list in Article 1117. To establish whether an asset is common one must therefore look, beyond the statutory presumption, at what the titles show and at the objective purpose of the asset.

Why the resolution is void and not voidable

The Joint Chambers of the Court of Cassation distinguish void resolutions from voidable ones. Void resolutions include, among others, those lacking essential elements, with an impossible or unlawful subject matter, those affecting non-waivable individual rights, or those concerning matters outside the meeting's competence. Deciding on a non-common asset falls squarely in this last category: the power to resolve is missing at the root. Resolutions defective in procedure or in majorities are instead voidable.

• Nullity may be noticed even by the court of its own motion
• It may be raised by anyone with an interest, not only by dissenting owners
• It is not subject to the thirty-day deadline
• A void resolution produces no effects and need not be annulled to be disregarded

Typical cases in practice

In practice one finds resolutions ordering works on a privately owned terrace mistaken for a common flat roof, or charging all owners for the upkeep of a structure that in fact belongs to a single owner, or deciding on the use of an adjoining non-condominium area. In all these cases the meeting intrudes into a field beyond its remit and the decision is radically invalid.

Be careful not to confuse the situations: if the asset is common but the resolution splits it wrongly among the owners, the defect is generally voidability. It is the non-common nature of the asset that shifts the classification towards nullity for lack of powers.

How to protect yourself

The owner of the affected asset, or any interested owner, may have the nullity established in court even beyond thirty days. Since this remains a condominium dispute, a prior attempt at mediation is still mandatory. It is advisable to document ownership of the asset with the deeds of provenance and the land registry records, so as to prove that it is not among the common parts.

Prevention and good data keeping

Many of these situations arise from an inaccurate condominium register, in which it is unclear what is common and what is exclusive. Keeping the list of common parts, the land registry data of the units and the correct linking of expenses to assets up to date reduces the risk that the meeting resolves on something that does not belong to it.

AmministraPro helps keep the building register in order, distinguishing common parts from exclusive property and linking each expense to the correct asset, so agendas can be set correctly. The features are described on the /funzioni page and the plans on the /prezzi page.