c, which provides for the binding nature of the art
In recent months we have come to the office a large number of questions about the compulsory opening of bank account of the condominiumIn this study we try to make the point on the new discipline trying to clarify some of the more controversial aspects and discussed the matter. The obligatory nature of the current account of the condominium. c, paragraph, provides that the obligation of the administrator to move monies received in any capacity by the co-owners or by third parties, as well as any title provided on behalf of the condominium, on a specific current account, post office or bank, made payable to the condominium. It is a novelty, because before the reformation, there is no rule imposing such an obligation. But it is not an absolute novelty, because previously the law had made it clear that the administrator was required to flow to the payment of the condominium units on a dedicated and separate current account in the name of the condominium which he administered, “in order to avoid that may arise from confusion between the heritage of the different management bodies he administered”.
In practice, the Legislature has written in black and white what had already been said, via pretoria, by eliminating any doubt about the existence of the obligation in question.
Binding nature of the norm. The ratio of the new layout is descended from “the needs of transparency that, being aware of the protection of the right of each co-owner to verify the the destination of their disbursements, without regard to the actual and concrete target of the amounts the same, by the lack of irregularities in management of funds, the approval of the financial statements by the shareholders meeting” (Court of milan. The standard assumes an imperative character, confirmed by art, paragraph, c. c, also by a possible regulation of a contractual nature, that is adopted or accepted by all the condos. The resolution authorizing the non-opening of the current account of the condominium is nothing. From the characteristics above-mentioned follows that any decision with which the assembly of co-owners authorizes the administrator to not open the current account of the condominium shall be invalid. As such, it can be contested by anyone who has any interest (even by a third party or by the co-owners who voted in favour), and in any time (even beyond the period of thirty days, that art. provides only for the appeal of the resolutions that can be cancelled). Therefore, the assembly can no longer effectively dispense the administrator from the obligation to open the current account of the condominium (Cass. The administrator therefore, immediately after the appointment, you must go to the bank or post office which it considers more convenient (except in case of specific recommendation of the assembly) and open the current account of the condo. Similarly, the new administrator, with the resolution of appointment, must proceed to a change in the header of the current account is already opened by his predecessor. The norm, however, says nothing about the practical details of the use of the account, which, however, may be appropriately governed with a resolution ad-hoc assembly or in the condominium regulations. The obligation of the current account of the condominium is also true for the small condomìni. The opening of the current account of the condominium is an obligation that rests on the the person of the administrator, and not on the condos. This obligation also exists regardless of the number of condos: if there is an administrator duly appointed by the shareholders meeting, take the time (and only to) the obligation to open the joint account. Therefore, if the appointment of the administrator is only optional (condomìni up to eight condominiums) the obligation that the examination shall only apply if the general meeting has duly appointed administrator, the legal representative of the condominium. In the opposite case, however, there will be no obligation to open a current account, which, again, is a duty by the administrator.
Opening and use of the current account
This setting also applies to cases in which the condominium is managed by a co-owner “acting” administrator. The 'acting' is an atypical figure that might not even exist, because in the absence of the administrator 'all the participants have the right to participate in the administration of common property' (art. and, then, all how many condos and this, in turn, could collect the dues, pay bills, manage expenses, etc, When said of the small condomìni also applies, in principle, for the condomìni with more than eight components, in which the appointment of the administrator is mandatory. If the assembly does not do it, art, paragraph, c.c. the appointment of an administrator is made by the court, but only “on petition of one or more condominiums, or the administrator who has resigned. Therefore, one can hypothesize a situation in which the condominiums agree, even tacitly, not to appoint an administrator: until there is unanimous consensus, there cannot be even the appointment by a court. Also in this particular case, in the absence of the administrator, there shall be no obligation of opening a bank account of the condominium.
The setting just referred to is disputed by those who feel it necessary to extend the obligation to all the condomìni, even in the absence of administrator, to ensure regular and transparent basis in the apartment building.
However, the text of art.
does not seem to allow for such broad interpretation.
Sanctions in case of non-opening or use of the current account of the condominium. In respect of the administrator who does not fulfil the obligation to open and or use the current account of the condominium each condominium party can take legal action (possibly after a formal warning), asking for the condemnation of the administrator to fulfill, in addition to compensation of damages, if it meets the relevant requirements. The failure to open, or use, of the current account also falls in the cases of serious irregularities as listed by the art, paragraph, c.c.
capable of justifying the revocation of the administrator's appointment.
The revocation, however, may also be required in case of mismanagement of the account “in a manner which cannot the general possibility of confusion between the assets of the condominium and the personal assets of the administrator or other condos.” (art, paragraph, no, c.c.).
The revocation can be decided on in each time by the assembly, with the same majority provided for the appointment of the administrator, or can be ordered by the court on appeal of each condominium.
The obligation of vision and the protection of privacy In the face of the obligation of openness and the use of the current account of the condominium, there is, also, to the right of each co-owner may inspect and take copies, at its own expense, periodic reporting(art, paragraph, c.c.). The administrator denies the direct access to the current account of the condominium. Here are some possible remedies to protect themselves Is useful to reiterate here that the art. allows each co-owner to view and extract a copy of the periodic reporting to the administrator. Unlike what was believed in the past, then the condominium may not apply directly to the bank or at the post office to get the statement of account. Instead, you must submit a special request to your administrator, who will then take the documentation to the bank e-mail (cf. The board of Arbitration, Banking and Financial, decision no. the fifteenth century.
Authority, privacy, newsletter no.
As to remedies against the administrator that prevents the right vision, even in the absence of the law, shall be deemed to apply the same sanctions for the failure to open or use the account. The co-owner concerned will be able to act in judgment for the condemnation of the administrator to fulfill, in addition to compensation of damages, if it meets the relevant requirements. Also, the behavior of the defaulting administrator well is able to configure a hypothesis of serious irregularity likely to justify the revocation of the appointment, as opposed to the general due diligence obligations of the authorised representative pursuant to art.
Opening a view of the illegitimate, what to look for to protect your rights.
the twentieth century c. c, entitled a kind of windows, says: windows, or other openings on the bottom of the next are of two kinds: lights, when they give.
