Void and voidable condominium resolutions: the differences

Telling void and voidable condominium resolutions apart is essential for anyone who wants to challenge a decision of the owners' meeting. The two categories of invalidity have different causes, different challenge deadlines and different consequences. Confusing them can cost you the right to assert your case: a voidable resolution that is not challenged in time becomes final. Here is what the Italian Civil Code provides and how case law draws the line between the two situations.

The distinguishing criterion: form and substance

The traditional criterion contrasts defects of form with defects of substance. Defects concerning the procedure by which the resolution was formed, such as the notice of the meeting or the quorums, give rise to voidability. Defects concerning the content of the decision, when it is contrary to mandatory rules, public order or public morality, or when the meeting decides on matters entirely outside its powers, give rise to nullity. The general rule is voidability, while nullity remains a residual case reserved for the most serious defects.

When a resolution is voidable

Resolutions affected by procedural and formal defects are voidable. This category includes flaws concerning the way the meeting was called and how it resolved.

• Missing, late or incomplete notice of the meeting to an owner.
• Failure to meet the majorities required for the specific matter.
• Errors in constituting the meeting or in calculating the quorums.
• Irregularities in recording the minutes of the session.

When a resolution is void

Resolutions with defects that radically affect their content are void. These are cases where the decision lacks essential elements, has an impossible or unlawful object because contrary to mandatory rules, public order or public morality, affects the individual rights of single owners over their units or the common parts, or concerns matters outside the powers of the meeting. In these situations the defect is so deep that the resolution is incompatible with the legal order.

The deadlines for challenging

This is where the distinction produces its most important practical consequences. A voidable resolution must be challenged within the thirty day forfeiture term set by article 1137 of the Civil Code. The term runs from the date of the resolution for owners who were present and dissented or abstained, and from the date the minutes are communicated for those absent. Once the thirty days have passed, the voidable resolution becomes final and can no longer be contested, and this holds even when the defect is obvious. A void resolution, by contrast, can be challenged at any time by anyone with an interest, because the defect affecting it is not cured by the passing of the term.

Who can challenge the resolution

Standing to challenge changes according to the defect. Annulment can be sought by owners who were absent, dissenting or abstaining, that is, by those who did not help approve the decision. Nullity, instead, can be asserted by any owner, including those who voted in favour, precisely because it protects interests that go beyond the will of individuals. In both cases the action is brought before a judge, normally after the attempt at mandatory mediation in condominium matters.

Suspending the resolution

The challenge, on its own, does not suspend the execution of the resolution. Whoever contests it can, however, ask the judge for a suspension, which is granted when the conditions set by law are met. In the meantime the decision remains effective, which makes it even more important to respect the thirty day term for voidable resolutions, without waiting for the outcome of the case before acting.

What the Court of Cassation says

Case law has clarified that voidability is the rule and nullity the exception. In particular, on the allocation of expenses the Joint Chambers established that a resolution allocating costs in breach of the criteria set by law or by the regulations is voidable, while only a resolution that changes those allocation criteria in a general and abstract way is void. The practical consequence is clear: many defects that owners consider radical are in fact grounds of mere voidability and must be asserted within thirty days.

The general rule is the voidability of the resolution. Nullity remains reserved for cases of a very serious lack of power or of unlawful content.

Preventing defects with orderly management

Most voidability defects arise from avoidable errors: notices sent late, quorums miscalculated, incomplete minutes. Orderly management of meetings dramatically reduces the risk of challenges. Keeping track of the dates notices are sent, calculating majorities automatically on the basis of the millesimal tables and drafting the minutes with all the required elements protect the condominium from formal disputes.

AmministraPro handles the meeting notice with proof of sending, calculates quorums on the millesimal tables and assists the drafting of the minutes, reducing the formal defects that make a resolution voidable. You can see how it works on the features page or compare the plans in the pricing section.