E 'enough to produce a report on the budget and allocation as well as the minutes of the meeting which approves them to be able to apply for a temporary injunction against enforcement of the defaulting owner?
The ratio of the rules of Article. 1130 cod. Civ. and Article .63 avail. Att. cod. Civ. aims to ensure that the administrator has sufficient funds to pay the service charges without exposing the building to condominiums and therefore the enforcement actions of third-party creditors or the suspension of supplies and servizi esplicati a favore del condominio.
Ne consegue che i condomini devono rispettare le scadenze delle rate, peraltro determinate da essi stessi, per il pagamento dei contributi, allo scopo di fornire la provvista economica all’amministratore.
Tale ratio assume particolar importanza in conseguenza del principio espresso dalla corte di cassazione, s.u., dell’8 aprile 2008, n.9148, in tema di parziarietà del debito ---
La sent. N.24299 della Cass. 29.09.2008 ha confermato il principio fugando ogni dubbio in proposito ritenendo legittimamente fondato il ricorso promosso dall’amministratore ai sensi dell’art.633 cod. proc. Civ. e dell’art.63 disp.att.cod.civ. allorchè il credito del condominio to be tried only by the statement of the annual budget of the condominium, the related allocation of expenses between condos per unit micron.
Supreme Court, Second Civil Chamber, Judgement n.24299/2008
proceedings.
with quote notified on 30.9.2002, MA and SG opposition to the proposed injunction issued against them by the magistrate in Rome at the request of the building in the condominium (Omitted), with whom he was ordered to pay the sum of Euro 759.29 insoluti.A Monthly charges for which the opposition was deduced that the above prior to the registration of the application for an order from the building, they had paid to the administrator the sum of Euro 623.99 for the expenditure items listed in the application, added that the injunction was unlawful in that it adopted on the basis of the 2001 budget, while the final balance was to be used at the time the application was lodged (27.5.2002) had not yet been approved, as this only happened in June; addussero that spending on "maid service" section in the final was less than that of preventivo.Il building, forming, admitted that the opponents had paid the amounts indicated, but argued that these amounts had been properly counted, as is apparent from accounts annexed to the application for decree ingiuntivo.Il justice of the peace, by decision of 4.11.2003, declare the nullity of the order and withdrew the same and ordered the building to pay the costs of giudizio.A support the magistrate's decision brought upon the grounds following text: "From the documents filed by the parties shows that the injunction was requested with the exception of Euro 116.91 with reference year of 2001, which at the time of final application of the Ordinance as it tried to blank it was not even Administrator can approvato.Poichè , according to a consolidated address judicial, use only with reference to the year of administration, it follows that the opposition of Mr. M. e S. deve essere accolta.Inoltre, atteso che l'opposto riconosce che gli opponenti hanno versato Euro 623,99, non vi è in atti alcuna prova della sussistenza di ulteriori debiti. Le spese seguono la soccombenza".Per la cassazione della sentenza ha proposto ricorso il Condominio dello stabile di (Omissis), in forza di due motivi; resistono con controricorso M.A. e S.G..
Motivi della decisione
Preliminarmente va respinta l'eccezione di inammissibilità del ricorso sollevata dai controricorrenti per una pretesa genericità della procura speciale. Si osserva che, secondo la costante giurisprudenza di questa corte, la procura apposta a margine del ricorso per cassazione, e autenticata da avvocato iscritto all'albo dei cassazionisti, must be considered "special" within the meaning of art. 365 Code of Civil Procedure, as incorporated to the appeal (Article 83 cod. Proc. Civ., Paragraph 3), making it irrelevant that the term pre-printed and inserted in the act provides that the right is conferred to the defender of the case "in these proceedings in any grade, including the subsequent implementation phase ... " (See plurimis ex Cass. 2.2.2006, n. 2340). On the merits, with the first complaint is why the building violations and misapplication of ' art. 1135 cc, No 2 and art. 63 disp. att. cc [1]. Assume that the court erroneously excluded the possibility for the administrator to use the budget approved in order to seek injunctive relief, because believing otherwise would not be possible to pursue the defaulting owner until approval of the second reason the condo consuntivo.Con complaint omitted and contradictory reasons, complaining that the magistrate assumes that there is no proof of debt against the opponents of the payments from their played, not knowing that these sums had been properly considered, as pleaded and proved that she was the extract attached to the application for injunction, which showed that the amount outstanding, net of amounts paid, it was just what action ingiunto.Il whose motives should be considered together because of their connection, you fondato.Benchè appeal the sentence falls between those issued in equity to Article. 113 cpc, so that it can be appealed to the Supreme Court only for violations of constitutional and community standards of rank higher than ordinary, and the rules of procedure pursuant to art. 311 Code of Civil Procedure, the complaint of violation of substantive law, contained in the first ground of appeal must be considered eligible in the same way the obligation of compliance with the guiding principles enshrined in the sentence no matter 206/04 of the Constitutional Court, since the standard referred to concerns the infringement of course also contains a guiding principle of the discipline of management is located, and in particular the manner and extent of the contribution of condominiums comuni.Il court costs peace, in fact, broken a basic and indispensable for the proper management of the condominium, which allows the administrator to collect the shares of the burden under a budget, until it is replaced by balance sheet duly adopted. The ruling states contested the erroneous principle that the budget would be operated until it has expired the year to which it relates; this principle, if applied, would make it impossible to recover the charges - and, therefore, affects the very possibility management of the building - all the time between the end of the year and the approval of the final, which could also be envisaged in relation to long- multiple possible events, including but not least, the disapproval of the project by the Assembly. In this case, therefore, is no basis to the first reason for the decision of the decision under appeal. It can not, then disregard bordering on the complete lack of motivation - also reportable in the well lawfulness in respect of judgments in equity - the assumption that the court would have been almost full payment of the amounts claimed, where it was not given any account of the deduction of the respondent - the narrative given in the same sentence - that the application for an injunction had already taken account of the alleged payments by the counterparty and this is apparent from ingiunzione.Deve account attached to the request, therefore, be concluded that the claim is accepted, resulting in the Supreme court to another court ruling and the peace of the office of justice of the peace of Rome, which also provide the costs of these proceedings. PQM
The Court accepts the appeal, the decision under appeal and cash returns, including the costs, with another judge of the Office of Justice of the Peace of Rome.
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