Vote by an unauthorised person: when the resolution is annulled

When an unauthorised person votes at the meeting, for example someone who is neither an owner nor a valid proxy holder, or a proxy who exceeds the representation limit set by Article 67 of the implementing provisions, the resolution is voidable only if that vote was decisive in forming the majority. If, once the irregular vote is removed, the majority still holds, the resolution remains valid. This mechanism is known as the resistance test.

Who is entitled to vote

The right to vote belongs to the owners, that is the owners of each unit, each with the weight of their own thousandths (millesimi). Where there is co-ownership, the unit casts a single vote through an appointed representative. The tenant does not vote, except in the limited matters where the law gives them a say, such as certain decisions on heating and air conditioning under Article 10 of Law 392 of 1978, and always within set limits. Anyone attending without title or a valid proxy is not entitled to cast a vote.

Proxies are allowed, but subject to the limit of Article 67 of the implementing provisions: in condominiums with more than twenty owners, a proxy holder may not represent more than one fifth of the owners and of the proportional value. A vote cast beyond this limit is irregular and must be excluded from the count.

The resistance test

The key principle is that the irregularity of a single vote does not automatically overturn the resolution. The judge, and before that the manager when drafting the minutes, must check whether, once the defective vote is removed from the count, the required majority is still reached. If the majority resists, the resolution is valid despite the irregular vote. If instead the majority would not have been reached without that vote, the resolution is voidable.

• Identify the vote cast by the unauthorised person
• Subtract it from the total in favour, both by heads and by thousandths
• Check whether the required majority is still intact
• If it holds, the resolution is valid; if not, it is voidable

Conflict of interest

A related case is that of an owner in conflict of interest with the condominium on a given point. Case law applies the resistance test here too: the resolution is voidable when the vote of the conflicted owner was decisive and the decision is harmful to the community. A conflict in the abstract is not enough; the vote must have actually affected the outcome.

How to raise the defect

Since this is voidability, the defect must be raised by challenging the resolution under Article 1137 within thirty days. Owners who were absent, dissenting or abstaining are entitled to act. The deadline runs from the resolution for those present and from delivery of the minutes for those absent. Before the case, a mandatory attempt at mediation is also required. The objection should be raised at the meeting itself, asking that the irregularity of the vote be recorded in the minutes.

The role of the minutes

Accurate minutes are the best defence. They must state those present, the principals and their proxies, the thousandths represented, and the outcome of the vote with the list of those in favour, against and abstaining. Only in this way is it possible to reconstruct afterwards whether a vote was irregular and whether it was decisive. Generic minutes that merely note approval by majority make it hard to apply the resistance test and weaken the condominium's position.

AmministraPro lets you manage the list of participants, record proxies while automatically checking the limits of Article 67, and minute the vote with a breakdown of votes by heads and thousandths. The features for managing meetings are shown on the /funzioni page and the plans on the /prezzi page.