THE

Until yesterday, 8/4/2008

In our judicial system – since the war – a few times it has happened that a single judgment of the Supreme Court (though the United Sections) has produced effects not only legal, but also in the business practice of each day as the no. 9148 8/4/08 which, as noted, has overturned an address and a principle established “time immemorial”.

Until then (among the rare exceptions v. Cass. 09/20/1996 n. 8530 in Arch. Loc. And Cond. 1996, p. 879. Compare the forerunner PP Capponi “Third creditor of the condo and recovery credit “in: Arch. Loc. and Cond. 1997, p. 201 et seq.) was in fact” communis opinio “, accepted both in doctrine and in jurisprudence, that the obligations contracted by the condominium with third parties had – from the passive side – supportive nature (ie each owner could be forced on third parties to ‘fulfillment for all, except the right of recourse pursuant to Art. 1298 and 1299 cc), with presumption “rebuttable” art. 1294 cc, in the presence of all three conditions required by law:

a) one debtor;

b) a performance that is identical due indivisible;

and, c), giving rise to the same obligation.

On the contrary, the Supreme Court has now decided, as noted, that the monetary obligations of condominiums co-debtors should instead be understood as parziarie (ie each debtor is required to pay only the part: Art. 1314, Part 2, DC) because of their nature (money) divisible (and unlike ‘traditional example of horse racing that is not so because, if divided and sold in parts, is worthless), unless the law provides otherwise or the title.

But, says the Judgment, “the solidarity of the condo is not covered by any provision of law …” “Therefore, the obligations of the condominiums are governed by criteria similar to those required by art. 752 and 1295 cc, for bonds hereditary, that the co-owners contribute to the payment of the debts of the estate in proportion to their quotas and the obligation of one of the co-debtors jointly between the heirs is divided in proportion to their share of the estate. “

This approach reverses the principle has always been that the majority was solidarity among the co-debtors rule (art. 1294 cc) and parziarietà the exception: it takes – it was believed – just in case the law (as for the heirs pursuant to Art . 752 cc for the debts of the estate) or the parties expressly foresaw.

Obviously solidarity, which is assumed (“or rather” it is required by law unless otherwise provided, even the title), is functional to protect the interests and positions of creditors that are logically reinforced by the co-ownership of the debt held by all obligors.

The judgment of SS.UU. revolutionizes so ingrained that presumption and “favor” one could assume from now on that a financial obligation, as it is intrinsically divisible, it is assumed parziaria unless the law provides otherwise or the title.

What is certain, however, that the Judgment (declared that the condos are passive holders of a bond divisible by then all examined adverse consequences to their creditors) ends with an interesting and unusual conclusion that – exhausted examination and application Rigorous just, pure, principles of law – and take note of how the judges (not always the case) are aware of the consequences (“summum jus, summa injuria makes clear”) not only doctrinal but also economic, social, customs, of their decisions: that not only thrive in closed repertoires of jurisprudence but tralignano to form the so-called. “living law”.

And the Supreme Court seems to, at the end of Judgment, he wants to “justify” such an unexpected “revirement” and prevent “at the root” of the likely practical criticism (which in fact was promptly drawn: the vast majority of commentators were opposed in some cases taking those distances with strong dissent) with a “closed” (on which – despite being one of the most important parts of the judgment – almost all of the notes have instead flown over) who is also a “gloss” finish.

Which – as mentioned – it goes beyond the pure law and leads to an (unsolicited) sort of “legitimacy” of the resounding choice made ​​in terms of political rights, social justice, economic equity (aspects that, in theory, would not be covered by responsibilities and duties of Judges):

“Finally, the solution, chosen according to strict principles of law which govern the contractual obligations common with the plurality of taxpayers, it appears appropriate to the needs of substantial justice emerging from economic and social reality of the condominium buildings.

In truth, solidarity would benefit the creditor who, negotiating with the administrator of the building, knows the situation of the debtor and can protect itself in various ways; but it seems preferable to the criterion of parziarietà, that does not force the debtors to advance sums sometimes very considerable following the choice (unexpected) made ​​unilaterally by the creditor. At the same time, there are found reasons of opportunity to postpone the distribution of debt among the owners at the time of revenge, rather than implement it at the time of performance “.

In conclusion and in fact the Judgment, as now reported from several parts, creates more problems than it solves when it states that the block can not be considered a management organization and that the Chief Executive can not commit condos beyond their rights of communion because the block does not have a unitary structure or an autonomous subjectivity that may affect such rights.

In this way the Supreme Court has highlighted once again the most critical of the current legislation “in subjecta matter” and the consequent advisability of reform (as advocated by Confedilizia) confers legal personality and ability to block and then a talent its capital, a capital fund of which the third party creditors can do – at least initially – rely.

II

Today, after 8/4/2008.

All that said, for better or for worse (depending on your point of view) so today things are and – since it is the United Sections – it can not be more apart, not deviate potendosene, art. 374 CPC, even the simple sections.

Today for the creditors of an apartment building (and especially the “qualified” between them both in frequency and amount of such credit, that construction companies of maintenance and restoration) are therefore increased business risks in relation to the payment of the fee the supply and procurement.

And since some work to the buildings can not be avoided nor suspend him (eg the supply of heating oil for next winter) the commercial practice is seeing the blossoming of a multiplicity of attempts to improve foster care and the ‘ reliability of condominiums towards their future creditors.

The simplest solution would be to take their cue from the same judgment of the Supreme Court, which assumes the title parziarietà bond unless the contrary, to establish an agreement in which it is intended precisely solidarity – then – the obligation.

In order that this clause is not valid enough but the subscription, says the Judgment, the only Administrator (who “can not force the individual blocks to the full extent of its powers and the relative share”) but it is necessary to (difficult) approval to ‘unanimity of the assembly of all buildings.

Because in the end the problem most real and concrete remains the same, mentioned by the same Judgment (“are not found reasons of opportunity to postpone the distribution of debt among the owners at the time of revenge rather than implement it at the time of performance”) and that is, the financial resources of the condominium.

If these are not thriving, especially in the face of significant funds for construction projects, is now on must be more aware and addressed before the problem (that is, the conclusion of the contract) and not later, when having to pay: emerging , only on this occasion, the chronic lack of funds and the economic difficulties of some condos.

Ad hoc funds that then, now more than ever, it becomes necessary to lay in advance of the conclusion of the contract and on the legitimacy of which has recently expressed the Rome Court judgment no. 7651 dd. 04.07.09, however subtly challenged by Luigi Salciarini in: Property and Law, Sept. 09, p. 16.

Even the bank guarantees and insurance can be a valuable aid in bargaining with suppliers, but with all the problems of the case: the need for authorization of all buildings.

So another – revolutionary – solution that is now spreading is the lighting of bank loans concluded directly with condominiums.

In theory, the mortgage is mortgage and so it would be necessary even in this case the ‘unanimity art. 1108, III c., Cc for its entry on the commons: rescues, however, a separate paragraph (the fourth art. 1108 cc) that – notwithstanding – you can be the only mortgage with the favorable vote of half plus one condominiums, representing at least two-thirds (667 mm) of the value of the building.

In practice, however, today some (few) banks – despite the judgment intervened – not pretend collateral and begin to be available to provide unsecured loans too, the maximum duration of 5 years and for amounts not exceeding, in principle, the € 200,000.

Among other things, these facilities are granted with the facilitation of an interest rate much lower (about half) than what you can get an average of individual condominium private, on equal terms.

Demand is obviously the express authorization of the Assembly falls outside the power of the mortgage pool by Administrator powers but only by the same majority shareholders’ meeting of the participants and half the value of the building provided by the Code for special repairs ex art . 1136, II c, cc.

In conclusion, if these conventions bank will extend and will come into use, it can be argued that the practical effect of the most significant caused by the Judgment of 8/4/2008 will be – very briefly – to translate the financial risk of non-payment and of ‘payment default on the part of the firms providing condominiums – which have basically indirectly supported to date, albeit unofficial – to the banks.

And perhaps this will correct a flaw that actually occurred in our economic system with unfairly penalize companies working for condominiums and found to suffer the effects of difficulties in the payments from their customers.

This risk will become more appropriately borne by the banks that – institutionally and professionally responsible to ‘lending – will be able to cope adequately (having the means, the skills and experience) and indeed will – thus entering the market – expand it and find new opportunities to grow their business.

III

Tomorrow

However, and in conclusion, even this “stare decisis” could be quickly overcome if, as it seems, is approved in time now close the unified text of bills to amend the legislation on the block presented by Sen. Millers (PDL) in the sitting of the Senate Judiciary Committee of 07.29.09.

In that case it would enter into force on the new art. 63 for the implementation of the provisions of the Civil Code which provides:

“Creditors of the condo (exercising actions targeted at ‘administrator towards condominiums defaulting even outside of the case provided by’ article 1129, paragraph eight of the Code) can not demand payment from apartment buildings in compliance with the payment if not after the examination of the other condos. In any case, the condominiums in order with payments that suffer damage done to other buildings or Administrator have a right of recourse against them.

The administrator shall inform the creditors of the condo still dissatisfied, under penalty of damages, the amounts due and not paid by each owner, as well as the possible use of tools and coercive collection within the meaning of 1129, ninth paragraph, within four months from the day on which the claim has become so collectible.

The condominium that has alienated the property unit is jointly liable with the assignee against the condominium For liabilities until such time as it is transmitted to ‘administrator certified copy of the title implementing the transfer of the right. “

The administrator must communicate that to the creditors of the condominium data defaulting owners; creditors to take over ‘Administrator actions against defaulters. But without being able to act immediately against those not in arrears: they will enjoy therefore of “beneficum excussionis”.

Genoa-Piacenza, 12/09/2009

Avv. Francesco Massimo Tiscornia