Leasing a common good: which majority the meeting needs

Before renting a room, a roof or a common area to a third party, the condominium must resolve it at the meeting with the correct majority. The general rule is that for contracts of no more than nine years a simple majority is enough, while ultra-nine-year leases require unanimity. To these is added an important principle: if the good can be used directly by the owners, the choice to lease it may require wider consent. Let us look at the full picture to adopt a valid resolution that resists a challenge.

Leasing as an act of management

Leasing a common good is an act of managing the collective assets that falls within the powers of the meeting under Article 1135 of the Italian Civil Code. It is not a disposal like a sale, because the good remains common property and is only granted for temporary enjoyment to a third party for a fee. This nature explains why, in many cases, a majority decision is sufficient. However, the regime changes according to the duration of the contract and the possibility of direct use of the good, and it is precisely on these two factors that challenges concentrate.

Contracts up to nine years: simple majority

For a lease contract of no more than nine years, the majority under Article 1136, second paragraph, of the Italian Civil Code is generally sufficient, that is, at the second call, a majority of those present representing at least half the value of the building. The reason is that it is an act of ordinary management of the good, which does not affect its ownership. The meeting can therefore decide to put an unused room to income without needing unanimity, provided the decision is reasoned and the fee is appropriate to the value of the good.

Ultra-nine-year leases: unanimity is needed

A lease longer than nine years has effects comparable to an act exceeding ordinary administration, because it binds the common good for a long time and, under the registration rules, produces effects towards third-party purchasers. For this reason the principles of Article 1108, third paragraph, of the Italian Civil Code apply, recalled in condominium matters by Article 1139: the consent of all owners is required. A majority resolution approving an ultra-nine-year lease is exposed to challenge by dissenters and absentees. Prudence requires treating as ultra-nine-year also those contracts that, through automatic renewals, in fact exceed that threshold.

If direct use of the good is possible

A settled principle in case law states that leasing a common part can be resolved by simple majority only when direct use of the good by the owners is not possible. If instead the good could be enjoyed directly by everyone, for example an area usable as common parking, the choice to remove it from collective enjoyment to rent it to a third party affects individual rights and tends to require unanimity. Before resolving, the meeting must therefore assess whether an alternative of direct use exists and record it in the minutes.

How to draft a robust resolution

To reduce the risk of challenge, the resolution authorising the lease must be clear and complete. In the minutes it is advisable to state:

• the precise object: which common good is leased and for what use
• the duration of the contract and the check against the nine-year threshold
• the fee, the adjustment criteria and the split of income on thousandths
• the outcome of the vote with heads and thousandths in favour, against and abstaining
• the mandate to the administrator to sign and register the contract

After the resolution: contract, collection and split

Once the lease is approved, the administrator signs and registers the contract in the name of the condominium, attaching or referencing the resolution. The fee must be collected in the condominium bank account, recorded among extraordinary income and represented in the report and the balance-sheet statement. The income is split among owners in proportion to their thousandths, with direct crediting or reduction of common expenses as resolved. Finally the administrator gives each owner the statement with the share of income collected during the year, needed for the tax return.

The consequences of a flawed resolution

A resolution adopted with an insufficient majority relative to the duration of the contract or the possibility of direct use is challengeable and can be annulled, with potentially serious effects also on the contract already signed. This is why the correct framing must be done before bringing the matter to the meeting, checking the duration, the nature of the good and the alternatives for use. In complex cases, in particular for long contracts or valuable goods, a prior legal opinion is advisable, costing less than litigation and a lease to be redone.

Bringing a common-good lease to the meeting requires preparing the agenda, correctly calculating the quorums, minuting the outcome with heads and thousandths and then managing the contract, collections and split. AmministraPro assists the administrator from the notice to the minutes and through to accounting for the fee and the tax statements. The features are on /funzioni and the plans on /prezzi.