Penalty on an owner with no rule in the regulation: unlawful

The owners' meeting cannot impose a financial penalty on an owner for breaching the regulation if the regulation itself does not provide for it. Article 70 of the implementing provisions of the Italian Civil Code allows a sum to be set as a penalty for breaches of the regulation, but only if this possibility is contemplated in the regulation. In the absence of such a provision, a resolution imposing a fine lacks any basis and is unlawful, and can therefore be challenged.

The basis of the condominium penalty

The condominium's power to penalise does not come directly from the law, but from the regulation. It is the regulation, as the set of rules governing the use of common items and condominium life, that may provide that anyone committing a breach pays a sum. Article 70 sets the maximum amounts that may be applied: the sum cannot exceed a certain limit, raised in the case of repeat offences. But the precondition remains a provision in the regulation.

It follows that, if the regulation is silent, the meeting cannot invent a penalty by resolution. A decision imposing a fine anyway would lack its foundation and would be contrary to the law.

The amounts provided by Article 70

Article 70 of the implementing provisions, as reformed by Law 220 of 2012, provides that the regulation may set the payment of a sum up to a maximum amount for breaches, with a higher cap for repeat offences. The sums imposed are allocated to the fund the administration uses for ordinary expenses. It is important that the regulation refers to this framework and that the resolution stays within the maximum limits provided.

• An express provision for the penalty is needed in the regulation
• The amounts must respect the maximums of Article 70
• The higher amount for repeat offences applies only if provided
• The sums are allocated to common expenses

Why the resolution can be challenged

A resolution imposing a penalty not provided by the regulation, or exceeding the limits of Article 70, is defective. The affected owner can contest it by challenging it under Article 1137. As this is generally a defect of legitimacy of the decision, the deadline to respect is thirty days. When instead the resolution radically affects individual rights, the classification may shift towards nullity. In any case, before the case, an attempt at mediation is mandatory.

The correct procedure for imposing a penalty

To impose a penalty validly, the regulation must first provide for it. It is then advisable that the breach be established and notified to the owner, so as to allow them to state their case. The resolution must indicate the regulation rule breached, the amount applied within the legal limits, and the reasons for the decision. A transparent procedure reduces the risk of annulment and makes the penalty actually enforceable.

Prevention and managing the regulation

Many disputes arise from dated regulations that contain no penalty clause, or that have not been aligned with the thresholds introduced by the 2012 reform. Keeping the regulation up to date and accessible, and keeping notices and resolutions in an orderly archive, allows the manager to act on solid grounds when action against misconduct is needed.

With AmministraPro the manager can keep the regulation and condominium documents, manage communications to owners, and minute resolutions with their attachments, keeping a trace of notices and any penalties. The features are described on the /funzioni page and the plans on the /prezzi page.