Contractual Regulations: Restrictive Clauses and Registration

Contractual regulations are those prepared by the original owner or builder and accepted by buyers in their respective deeds. Unlike meeting-approved regulations, they may contain clauses limiting owners' rights over their exclusive property: use bans, limits on change of use, decorum constraints. For these clauses to bind those who buy later, however, they must respect precise publicity rules: registration in the land registers or express recall and acceptance in the purchase deed.

What sets contractual regulations apart

The distinction between contractual and meeting-approved regulations lies not in the name but in the content and the way they are formed. Meeting-approved regulations are passed by the owners' meeting and govern the use of common parts and the organisation of management. Contractual regulations arise as a contract: they are prepared and accepted by individuals in their purchase deeds, and precisely because of this negotiated origin they can go as far as limiting exclusive property, which a majority meeting could never do.

Only the contractual source, meaning the consent of each owner, justifies a limit on ownership rights. This is why certain clauses can appear only in regulations of a contractual nature.

Clauses that limit property

Among the most frequent restrictive clauses are bans on using a unit for certain purposes, for example as a medical practice, a bed and breakfast, or for noisy or disturbing activities, or a ban on keeping animals (the latter allowed only in contractual regulations, never in meeting-approved ones, by express provision of Article 1138). These are real limits on the content of the ownership right: for this reason they must be worded clearly and specifically, because limitations are not presumed and are interpreted restrictively.

• Bans on specific uses of the unit
• Limits on change of use
• Constraints protecting the architectural decorum
• Restrictive clauses must be interpreted restrictively, never expansively

Enforceability against future buyers

The central problem is enforceability: a restrictive clause binds whoever signed the original deed, but does it also bind someone who buys the unit ten years later? The answer depends on publicity. For the constraint to run with the property and be enforceable against third-party buyers, the clause must be registered in the land registers, or the new owner's purchase deed must expressly recall the contractual regulations and accept their content. Failing that, the subsequent buyer may not be bound by the limitations.

Registration, governed generally by Articles 2643 and following of the Italian Civil Code, makes the constraint knowable to anyone consulting the registers and ensures its effect against subsequent successors in title. A simple recall in the deed, with acceptance, produces a similar effect in terms of the new buyer's consent.

Restrictive clauses and merely regulatory clauses

Not all clauses of contractual regulations have the same nature. A distinction must be drawn between clauses that genuinely limit individual rights, which follow the contractual regime and the publicity requirements, and clauses that merely govern the use of common assets or the organisation, which have regulatory scope and can be amended by the meeting. Even regulations born as contractual may contain, alongside restrictive clauses, provisions of purely organisational content, amendable by majority.

How contractual clauses are amended

Clauses of a contractual nature, affecting individual rights, can be amended or removed only with the consent of all owners. The meeting, voting by majority, cannot eliminate or soften a validly assumed restrictive clause: a resolution to that effect would be void or voidable depending on the case. This is why checking the nature of each clause always precedes any decision to amend.

Keeping the contractual regulations, checking the recalls in the deeds and knowing which clauses are enforceable is easier with a digital archive organised by condominium. With AmministraPro the manager stores the regulations, attachments and source documents, with quick access in case of disputes: the features are described on /funzioni and the plans on /prezzi.