In the condominium context, the resolutions of the assembly they represent essential tools for the management and organization of the common areas. Not all of them, however, have the same legal weight. In fact, there are resolutions decision-makingwhich determine concrete and immediate effects, e programmatic or interlocutory resolutions, which simply take on a preparatory or exploratory character. Let's try to better understand the differences between the various types of resolutions and when it is possible to challenge them.
Types of condominium resolutions
Condominium resolutions are the instrument with which the will of the condominium members is expressed regarding the management of the common areas. However, there are some that are not decision-making in nature.
Let's start from decision-making or dispositive resolutions: represent a clear decision on a specific issue. It's about binding acts, which can concern a wide range of decisions, from the use of the courtyard as a car park to the approval of the final budget, to appearing in court to defend oneself from legal action. In these cases, the condominium assembly decides on issues that involve a financial commitment or a change in the management of the condominium.
The non-decision-making resolutions however, they do not entail immediate implementation, since they lack a “preceptive” content, they do not reach a definitive conclusion and do not bind the condominium. Within non-decision-making resolutions, further categories of resolutions can then be distinguished: preparatory (they serve to prepare the ground for future decisions, collecting information or preparing preliminary analyses), programmatic (they establish guidelines or plans for future actions without deciding anything operational immediately), interlocutory (they discuss a topic without arriving at a conclusive decision, postponing the decision to a later time).
The preparatory, programmatic or interlocutory resolutions do not directly affect the patrimonial sphere of the condominium owners, since they do not involve definitive decisions or economic commitments. Consequently, the prejudice for condominium owners is only potential and not concrete, which generally makes it more difficult to challenge such resolutions.
Interest in taking action
Having established that the possibility of appeal mostly concerns resolutions of a decision-making nature, if a resolution of this type is deemed illegitimate or harmful to one of the co-owners, the latter has the right to challenge it to have its invalidity ascertained. In this context, it is fundamental the interest in acting: that is, the condominium owner must demonstrate that the contested resolution causes concrete damage to his legal or patrimonial sphere. The law therefore requires a interest worthy of protection to take legal action. This interest represents a utility or an advantage that the citizen can obtain only by resorting to justice. Even to challenge a condominium resolution, it is necessary to demonstrate this interest, without this prerequisite, the action is inadmissible.
We also remember that the resolution of the assembly can be challenged only and exclusively by those condominiums who have not contributed to approve it. Therefore, only i. can challenge the resolution, approved by a majority of the assembly dissenting condominium members, abstained or absent. The minutes of the meeting must include attendance, thousandths of ownership and the decisions taken on the items on the agenda.
Regulatory guidelines
Italian jurisprudence has repeatedly clarified that interlocutory or programmatic resolutions they cannot be independently challenged in the absence of a concrete interest in taking action. For example, in a recent ruling of the Court of Rome (no. 5043 of 19 March 2024), it was established that two 2018 resolutions challenged by an owner were only interlocutory in nature and did not concretely affect her patrimonial sphere. Consequently, the appeal application was dismissed for lack of interest in bringing proceedings.
The Supreme Court of Cassation (sentence no. 10865 of 2016) also reiterated that the interest in challenging a condominium resolution presupposes that the resolution is suitable for bring about a change in the position of the condominium owners, subject to possible prejudice.
A further sentence of the Supreme Court, n. 6128 of 2017, then underlines that the condominium owner who intends to challenge a resolution must demonstrate a concrete interest, deriving from an appreciable personal prejudice.