LA CORTE SUPREMA DI CASSAZIONE
SEZIONI UNITE CIVILI
Composta dagli Ill.mi Sigg.ri Magistrati:
Dott. CARBONE Vincenzo – Primo Presidente -
Dott. VITTORIA Paolo – Presidente di sezione -
Dott. ELEFANTE Antonino – Presidente di sezione -
Dott. TRIOLA Roberto Michele – rel. Presidente di sezione -
Dott. GOLDONI Umberto – Consigliere -
Dott. SALVAGO Salvatore – Consigliere -
Dott. FORTE Fabrizio – Consigliere -
Dott. CURCURUTO Filippo – Consigliere -
Dott. DI CERBO Vincenzo – Consigliere -
ha pronunciato la seguente:
ruling on the appeal by:
MAM ((omitted)), elected
domiciled in Rome, Viale dell'Universita '27, at the Chambers of
GERMAN DARIO, to represent and defend, by proxy at the bottom of
action;
- sought -
against IE, CONDOMINIUM (omitted);
- underwear -
and appeal No. 14222/2005 proposed by:
IE ((omitted)), elected
based in Rome, Via Paolo Emilio 26, at the Chambers of Advocate
MASSIMO MORELLI, to represent and defend, per
delega a margine del controricorso e ricorso incidentale;
- controricorrente e ricorrente incidentale -
contro
M.A.M., CONDOMINIO DI (OMISSIS);
- intimati -
avverso la sentenza n. 4372/2004 della CORTE D’APPELLO di ROMA,
depositata il 13/10/2004;
udita la relazione della causa svolta nella pubblica udienza del
06/07/2010 dal Consigliere Dott. ROBERTO MICHELE TRIOLA;
uditi gli avvocati Darlo TEDESCHI, Massimo MORELLI;
udito il P.M. in persona dell’Avvocato Generale Dott. IANNELLI
Domenico, che ha concluso per l’accoglimento dei primo reason
main action; absorbed other reasons, dismissed
appeal.
Done With a summons served 2 November 1994 agreed the building of IE (omitted), to which he belonged, before the Rome Court, asking it to be declared invalid or set aside the decision of the condominium on September 30, 1994, by which was approved by a majority, not unanimity, a new table for heating costs.
The condominium is constituted, resisting the demand, with no sentence 21737/2000 the Court of Rome declaring the nullity of the resolution in question.
Contro tale decisione proponeva appello l’altra condomina M. A.M.; la Corte di appello di Roma, con sentenza in data 13 ottobre 2004, confermava la decisione di primo grado, in base alla seguente motivazione:
Deve, preliminarmente, esaminarsi l’eccezione di inammissibilità dell’appello sollevata dalla I.. Tale eccezione è priva di pregio.
Ed invero, la dichiarazione di nullità della deliberazione in questione incide non solo sulla gestione delle cose comuni, ma anche sul diritto soggettivo dell’appellante all’attribuzione di una quota millesimale corrispondente all’effettiva consistenza della sua proprietà esclusiva usufruente del servizio di riscaldamento.
the merits, the appeal does not appear to be justified and should therefore be rejected because of the above considerations and by which it shall be considered eligible. The tables micron, including those relating to services which benefit the individual blocks in different ways such as heating the stairs and elevators, are still referred to the exclusive property of the individual participants in the building and are a prerequisite for the actual division the associated costs. Based on this distinction should be interpreted in conjunction with Article 1138 Civil Code, Sections 1 and 3 in the sense that while the regulation concerning the actual division of costs may be approved dalla maggioranza di cui all’art. 1136 c.c., comma 2, le tabelle, millesimali devono essere approvate all’unanimità.
La circostanza che la precedente tabella millesimale, che non risulta essere stata autonomamente impugnata, è stata approvata con la maggioranza di cui all’art. 1136 c.c., comma 2, non ha alcun rilievo nella presente fattispecie, perchè non legittima l’approvazione di una nuova tabella con una votazione diversa da quella unanime.
Proprio tale influenza impedisce il rilievo di ufficio della nullità della delibera che ha approvato la precedente tabella nella presente controversia che riguarda soltanto la validità della deliberazione impugnata.
Against this decision appealed to the Supreme Court with three counts, MAM.
made a counterclaim IE, which has also proposed conditional cross-appeal, with a single reason.
Law
should first be prepared to the meeting of appeals. The first reason
MAM regrets that the lower courts have held that the tables are thousandths unanimously approved, it would not be enough qualified majority under Article. 1136 cc, paragraph 2, which refers to the art. 1128 cc, paragraph 3, regarding approval of building regulations, which, in accordance with art. 68 disp. att. cod. Civ., tables micron should be attached.
Does the college that the complaint is well founded.
For a long time considered that this SC for approval or revision of the tables thousandth requires the consent of all buildings, where such consensus is lacking, training tables provides the court at the request of stakeholders, in contradiction with all buildings (see this effect: sent. June 5, 2008 No. 14951; 19 October 1988 No 5686, October 17, 1980 No 5593, April 18, 1978 No 1846; 8 November 1977 No 4774, March 6, 1967 No 520).
In support of this have been put forward various arguments.
It was argued that the determination of property values of each owner and their expression is regulated in milliseconds by operation of law, so do not fall within the competence of (Judgement 27 December 1958 No 3952, August 9, 1996 No 7359) or have been referred to the nature of negotiation 'Declaration of Acceptance of the tables thousandth in the sense that, although they can not be regarded as a contract by failing to character device (with it as condominiums, at least usually do not in any way alter the scope of their respective rights and obligations participation in the life of the building, but refers only to determine quantitatively the flow), must be framed within the category of finding shops, resulting in need the consent of all buildings (sentence July 8, 1964 No 1801) or still has relied on the fact that, being the thousandth tables also prepared for the purpose of calculating the majority of buildings (quorum) at meetings, preliminary in nature respect the constitution and the validity of shareholder resolutions, and therefore can not be covered (Judgement March 6, 1967, cit., for which the fact that the tables are contained in Regulation, pursuant to art. 68 avail. att. cc, is simply to give a formal allegation that does not change the intrinsic nature of the institution as described before).
Under this approach, due to the absence of a rule which gives the assembly the power to adopt resolutions on the subject of tables micron, the resolution of approval adopted by a majority of the tables is ineffective against the condominium for nullity absent or dissenting radical deductible without limit of time (sentence August 9, 1996 No. 7359).
The eventual approval by a majority thousandth of a table is not, however, without effect.
It is in this context, stated that the resolutions adopted by the Assembly in the field, both majority and unanimity of the only condos to present, amounts to a hypothesis of nullity is not absolute but only relative, as unenforceable by the condominiums will, and do not compel the dissenters and those who are absent, which could deduce the ineffectiveness under general principles, without being required to comply with the limitation period provided for in art. 1137 cc (Judgement March 6, 1967, cit., December 23, 1967 No 3012 / 6 May 1968, no 1385, March 6, 1970 No 561, December 14, 1974 No 4274, in the sense that the absent and the dissenters may be rely on the invalidity of the act, pursuant to art. 1421 cod. Civ., formed by their failure to join, see. sent. 14 December 1999 No 14037).
The limited effectiveness due to tables thousandths by a majority was justified by the fact that the determination of the values implemented for the purposes of art. 1123, 1124, 1126 and 1136 cc: it concerns, that is, the allocation of costs and the functioning of the assemblies, but does not affect rights in rem, nor on the actual value of the property, given that, pursuant to art. 68 cit., Uc, in establishing the values \u200b\u200bin thousandths of the fee shall be disregarded locatizio, improvements and maintenance status of the thing, it follows that the formation or modification of the values \u200b\u200bcan only thousandths lead to a relationship of a personal nature, whose various determinations may well be effective only to the condominiums that they put in place, without regard, should therefore speak of a decree absolute (March 6, 1967, cit.).
It was also considered (path 6 March 1967, cit.) That the appeal is not allowed even to his successor in title of the condominium apartment properties in particular that he gave his consent to adoption by a majority of the tables thousandth:
place, in fact, that the obligations of the owners, referring to the property included in the building, such as the participation in the common expenses, or the respect of majority shareholders, are within the particular institution, staff constraints prescribed by law ( and not by the will of the parties) in direct dependence of the real right, they move automatically, even to act tra vivi, con il trasferimento di quel diritto, e indipendentemente dalle limitazioni che derivano dalla pubblicità per esso prevista, alla stregua di quanto avviene, a causa del loro carattere ambulatorio, per le obbligazioni propter rem o rei cohaerentes, non potrebbe negarsi che anche le determinazioni necessariamente connesse con quegli obblighi si trasferiscano contemporaneamente con essi nel successore a titolo particolare, in forza del principio per il quale l’oggetto del trasferimento perviene all’acquirente nella stessa misura e con le stesse facoltà con cui esso appartenne al precedente titolare (nemo plus iuris quam ipse habet transferre potest). Tale conclusione troverebbe conferma nella considerazione che la stessa osservanza thousandth of the values \u200b\u200bis an obligation ex leqe, so that the values \u200b\u200brepresenting the same proportional part of the assessment with respect to all, and being instrumental to the main purpose of the allocation of common expenses and the formation of the quorum of the majority shareholders, they are in substance to achieve the quantification and concrete determination of that obligation, so that, by transferring it into the successor to a particular way, he moved the concrete determination of the values \u200b\u200bmade in the meeting with the consent of the predecessor, in under the principles set out above.
According to other decisions, the decision of the majority would be affected by decree absolute (and therefore ineffective for those who voted in favor) when he was recruited by a majority of respondents also represent half of the value of the building, and would be affected by relative nullity by virtue of its failure to adhere only to of where taken away and dissenting with the majority in question (Judgement No. 7040 November 24, 1983, 9 February 1985 No 1057).
E 'was also put forward the simple ineffectiveness of the resolution approved unanimously not condominiums, to be considered at a later date subject to achievement of consensus occurred by the application of the fact tables by of blocks away (Judgement 17 October 1980 No 5593).
It 'still consistently claim that the behavior of blocks away who have paid contributions in accordance with the communal tables by a majority is possible to identify an acceptance of the tables themselves, not at issue is the real effects, for which the consent of the Adoption of the tables, not by postulating the requirement of specific formal requirements, it may well occur for facta concludentia (Judgement No. 4774 November 8, 1977, 19 October 1988 No 5686).
Similar principles have been established with reference to table editing thousandth.
It is therefore considered that the participation with the favorable vote to the repeated resolutions adopted by the assembly of a condominium building to share the extraordinary expenses in accordance with a value of the shares of individual blocks different from that expressed in the tables thousandth, or acquiescence represented by the concrete application of the same tables for multiple years (path
July 16, 1991 No 7884, October 19, 1988 No 5686), can take the value of the unique behavior of the detector will change in the partial tables thousandth part of the owners who participated in the voting or who have acceded to or accepted the division and may result in different, so for the amending of an agreement governing the allocation of service charges, which, having a contractual nature and do not affect rights in rem, does not require the written form, but also the tacit consent or facta concludentia, provided unequivocal of all buildings (Judgement 17 May 1994 No 4814).
consent could not, however, be inferred from conduct by those in condos that have already expressed dissent from the Assembly approval of Tables micron, as, in the presence of their express wishes, it is not permissible to seek a contrary intention implied or assumed that should prevail on the first (path
February 9, 1985 No 1057, in the sense that the condominiums, participating in meetings for three years and performing payments in accordance with the new tables, does not appear to facta concludentia the consensus that had expressly denied at the time of the relevant decision condominium cf. sent. No 28 April 2005 8863) or the buyers' behavior (Judgement No. 7359 August 9, 1996).
deviates implicitly, but without providing reasons for this approach, the decision No 11 February 2000 1520, according to which "high" table editing thousandth of existing or the creation of these tables is reserved for faculty meeting of the owners, and is not within the duties of directors of condominium.
detect the college that the arguments used to support the thesis the jurisdiction of the Assembly regarding the approval of the tables thousandth unconvincing.
Regarding the argument that the determination of property values \u200b\u200bof each owner and their expression is regulated in milliseconds by operation of law, so not within the jurisdiction of the Assembly, one could argue that: a) the law does not regulate the specific procedures for determining the thousandths, but merely provides that they must be an expression of the value of any plan or portion of the plan, excluding the impact of certain factors (art. 68 avail. att. cc) b) when determining the values \u200b\u200bof individual units and their expression in milliseconds was actually governed by the law, as excluding all discretion, there is no reason why the tables should necessarily be adopted unanimously thousandth or formed in a case to be heard to play in all buildings, if possible, in theory, provide even the administrator.
The assertion that the need for unanimous consensus due to the fact that the resolution of approval of the tables would be a thousandth store proof of ownership of the individual units and common areas is in contrast to the other for support in case law di questa S.C. e cioè che la tabella millesimale serve solo ad esprimere in precisi termini aritmetici un già preesistente rapporto di valore tra i diritti dei vari condomini, senza incidere in alcun modo su tali diritti (sent. 25 gennaio 1990 n. 431; 20 gennaio 1977 n. 298; 3 gennaio 1977 n. 1; nel senso che non è richiesta la forma scritta per la rappresentanza di un condomino nell’assemblea nel caso in cui questa abbia per oggetto la approvazione delle tabelle millesimali, in quanto tale approvazione, quale atto di mera natura valutativa del patrimonio ai limitati effetti della distruzione del carico delle spese condominiali, nonchè della misura del diritto di partecipazione alla formazione della volontà assembleare del condominio, is not likely to affect the texture of real rights belonging to each, cf. sent. June 28, 1979 No
3634).
Then, when the condominiums approve the table that determined the value of the plans or portions of the plan in accordance with criteria established by law do little more than acknowledge the accuracy of the calculations of the proportion between the value of the share and the of the building, in summary, the extent of the shares is determined under a particular provision of law.
The approval of the result of a technical operation no matter the resolution or elimination of prior disputes, debates, or doubts the value of a thing is and that his investigation does not involve any willful action, which is why the simple recognition that the operations were carried out in accordance with the precept of legislation can not be classified bargaining activities.
The end condominiums, when approving the calculation of quotas, is not to remove the uncertainty on the proportion of the competition in the management of condominium and costs: uncertainty that exists because the ratio may be the subject of debate, having to be determined on the basis of precise, the end of condominiums is only to take note of the translation in fractions of a thousandth of values \u200b\u200bpre-existing relationship and to achieve this do not need a store where the scheme provides for the elimination of uncertainty as a typical attempt by finding and declaration of the status quo.
Ultimately, the resolution approving the tables milliesimali does not arise as a direct source contribution obligation of the condominium, which is provided in the law, but only as a parameter to quantify the obligation, determined on the basis of a technical assessment; feature of their legal transaction is the shape of the objective reality for the parties:
the act of approval of the table, however, belongs to a reconnaissance documentation of this reality, hence the defect notes of the negotiations.
If one considers that under Article. 68 disp. att. Code tables are used for the purposes of Articles. 1123, 1124, 1126 and 1136 cc, ie, in the allocation of expenditure and the calculation of quorum and deliberation in the assembly, you immediately feel the difficulty of supposing that a determination by the Assembly will affect the property rights of individual blocks. A determination that did not reflect the actual value of a plan or a portion of the plane to the whole building could be detrimental to the condominium, in the sense that could force him to pay service charges to an extent proportionate to the value of that part of proprietary property, but does not affect the right of ownership as such, but rather on the burdens borne by bonds of the condominium as a function of that property right, which you can remedy by revising the table art. 69 disp. att. cc.
A shop for assessment of the ownership of the individual units and common parts, then, should be in writing, does not seem possible, therefore, argue that the consent of the owners who have not participated in the resolution approving the tables could thousandth properly be expressed by facta concludentia the behavior of the same view after the resolution itself, a prescindere dal fatto che è difficile attribuire un valore negoziale alla manifestazione di volontà dei condomini diretta alla approvazione della delibera (cioè di assunzione di un impegno nei confronti di coloro che hanno votato nello stesso modo e di proposta contrattuale nei confronti degli altri condomini) sia al comportamento degli altri condomini successivo alla delibera (cioè di accettazione di una proposta).
Anche la affermazione secondo la quale le tabelle millesimali, essendo predisposte anche al fine del computo delle maggioranze nelle assemblee, hanno carattere pregiudiziale rispetto alla costituzione ed alla validità delle deliberazioni assembleari e non possono quindi formarne oggetto, sembra in contrasto con the law according to which a criterion for identification of the condominium fees, the ratio between the value of individual properties and the value of the building, in existence before the formation of micron and tables can be evaluated (if necessary a posteriori and in court ) if the constitution of a quorum and resolutions have been reached, for which the tables easier, but not even affect the conduct of meetings and in general management of the condominium (see, to that effect, most recently: sent. January 25, 1990, cit., January 20, 1977, cit.;
January 3, 1977, cit.).
In order to claim that the resolution with which the Assembly should not approve unanimously the tables would be affected by thousandths decree absolute (and therefore ineffective for those who voted in favor) if not taken with the majority of respondents also represent half of the value of the building, while vitiated with nullity relative only to the absent and dissenting, when taken with a majority in the matter, it is easy to see that presupposes a distinction between decree nisi and decree absolute that no trace of the law and is suffering from an inner contradiction, what if we start from the premise that the Assembly has no power to act by a majority, you can not understand as, according to the majority reached, the defect would be of greater or lesser severity.
From a practical point of view the theory of the nature of the approval of the negotiating table presents micron, then the inconveniences.
should not be, in fact, forgotten that contracts bind only the parties and their successors under universal title. The thousandth consider a table for blocks binding only with consent by them, expressly or tacitly expressed, would result in the ineffectiveness of the table itself against any successors in title to the particular apartment buildings, with the result that every sale of a unit Real estate should be followed a new act of approval or a new trial concerning the formation of the table.
Once it is clear that the nature of the thesis in favor of the approval of the negotiating table micron is not put forward any convincing argument, if one considers that those tables, under Article. 68 disp. att. cc, are attached to the building regulations, which, under Article. 1138 cc, is approved by a majority, and that they do not ensure the right of individual condominium units on property owned exclusively, but only the value of these units over the entire building, for the sole purpose of managing the building, should be logical to conclude that these tables must be approved by the same majority required for building regulations.
In the opposite direction does not seem to support (path 6 March 1967, cit.) That the allegation of the tables in rules are purely formal, but also does not mean identity of discipline regarding the approval.
In principle, in fact, a note attached to another, with which it is the same size, must be considered subject to the same discipline, unless the contrary appears explicitly.
should finally be noted that the approval by a majority of the tables does not inconvenience thousandth of relief against the condominium, as in errors in the assessment of housing units owned exclusively by those who feel affected may request, no time limits, review art. 69 disp. att. cc.
recently has established a policy which stands unwittingly from the "traditional" and according to which the condominium buildings in the theme, the tables annexed to the thousandth house rules, if they have a conventional nature - as prepared by the sole original owner and accepted by the initial purchasers of individual units that have been the subject of agreement by all blocks - may, as part of the autonomy Private, set criteria for allocating the joint costs also differ from those established by law and be modified with the unanimous consent of the owners or for action of the court pursuant to art. 69 disp. att. cc, where, however, have non-consensual, but because deliberative approved by resolution of the condominium - the tables micron, which need to include criteria for allocating the costs to comply with those conditions and criteria must comply with in cases of revision, may be amended by the majority laid down in art. 1136 cc, subparagraph 2 (in relation to art. 1138 cc, paragraph 3) or by application of the court pursuant to Art. 69 disp. att. mentioned. It follows that while it is affected by the invalidity decision to amend the tables adopted by conventional micron without the unanimous consent of the owners or if they are not brought all the condominiums, is valid, the decision changes the table thousandth of non-consensual adoption Assembly with a majority required by Article. 1136 cc, paragraph 2 (Judgement No. 11960 June 28, 2004, in a manner consistent cf.: Sent. February 23, 2007 No No 17 276 4219 / 25 August 2005, seems to make a synthesis between the new and the previous approach, the decision April 28, 2005 No 8863, for which the adoption of new tables thousandth amendment of those annexed to Regulation contract must be decided with the consent of all the condos and in the presence of expressed dissent, can not be considered a different will prevail, implied or constructive, as the latter is in itself inherently ambiguous, it is not clear the thinking of decision No 22 November 2000 15094, whose "high" states that the divergence between the values \u200b\u200bof the real plans or portions of the plan, compared to the same, and tables derived from micron innovations and restructuring following the act that approves warrants review under any work of the condominium, condominiums under contract, or of the court).
This realignment, which was expressly rejected by the ruling March 26, 2010 No 7300, however, not clear in the first place, as may be approved by a resolution of thousandths tables condominium, if the earlier case had ruled on the competence of the Assembly, and, second, seems to contrast the earlier case in terms of so-called house rules of origin "contract" and this Court, in fact, made it clear that it is necessary to distinguish between national regulations and contractual provisions and typically only for the latter is necessary for the purpose of amending the agreement of all participants, while the former are modified by the majorities required by law, stating further that: a) the different nature of the two sets of provisions and other rules governing their modifiability can not affect their common inclusion in Regulation (path November 14, 1991 No 12173), b) have only a contractual clauses limiting the rights of exclusive condominium properties or common conferring some condominiums more rights than others (Judgement 30 December 1999 No 943), on the basis of Against this background does not appear, in principle, does not seem to recognize contractual tables thousandth the mere fact that, pursuant to art. 68 disp. att. cod. Civ. are to be added to the Rules of Origin-called "contract" when it is not expressly state that it is intended to derogate from the statutory scheme of apportionment of costs, it is understood, that is, approve the "otherwise agreed" in Article. 1123 cc, paragraph 1 (in a manner consistent cf. Implicitly ruling June 2, 1999 No. 5399, which, with reference to a case in which the tables attached to the CD regulation contract had not respected the principle of proportionality referred to ' art. 68 avail. att. no. Civ. said that the tables annexed to Regulation thousandth contract can not be changed except with the unanimous consent of all buildings or act of the court).
the light of the complaint should, therefore, assert that the tables thousandth must not be approved with the unanimous consent of the owners, having enough qualified majority under Article. 1139 cc, paragraph 2, resulting in the first ground action and absorption of the other main reasons for that action.
must therefore examine the sole reason for the conditional cross-appeal, with which it follows verbatim: The exception that in this case it is a table approved by a majority, was put forward and tested by M. only on appeal, thus incurring the prohibition to attach new evidence on appeal.
The reason is unfounded, according to the decisive consideration that the whole trial was held peacefully on the assumption that it was for the appeal of a decision that was unanimously approved by a majority and not the thousandth tables for heating costs .
Ultimately, it accepted the first plea of \u200b\u200bthe main action, with absorption of other reasons for that action and should be rejected on appeal.
regard the ground of the decision under appeal should be quashed, with reference to other section of the Court of Appeal in Rome.
In view of the characteristics and complexity of question, considers the College to offset the costs of legality.
PQM
THE COURT meet the applications; welcomes the first ground of the main action, with absorption of other reasons for that action; rejects the appeal, the ruling contested case, with reference to other section of the Court of Appeal in Rome; compensates for the costs of appeal.
Decided in Rome, July 6, 2010.
deposited at the Registry August 9, 2010
