The division of condominium expenses between seller and buyer

How the expenses relating to condominium charges are shared between the seller and the purchaser of a building unit belonging to a condominium following the sale of the latter.

Article 63(4) of the Civil Code states that: "whoever succeeds to the rights of a condominium owner is jointly and severally obliged with the latter to pay the contributions for the current and previous year".

With the reference to the 'year', the rule does not refer to the calendar or civil year, but rather to the condominium management or financial year, which nevertheless comprises 365 days, but instead of starting on 1 January, it starts on a date fixed by the condominium regulations or the condominium meeting.

The time frame within which the above-mentioned joint and several liability of the purchaser extends depends in concrete terms on the time limits of the condominium year in which the purchased property is included.

Thus, for example, if the real estate was transferred on 19 April 2023 and its transferor had debts dating back to May 2021, the purchaser may be held jointly and severally liable with its predecessor if the condominium financial year ends on 30 April of each year, on the contrary, not if the latter closes on 30 March.

In relations between the seller and purchaser of a building unit forming part of a condominium, the general principle of the personality of bonds - unless otherwise agreed between the parties - according to which it is the purchaser who is liable for condominium obligations arising after he becomes a condominium owner as a result of the purchase.

The principle by virtue of which the purchaser may be called upon to answer for the condominium debts of his predecessor in title, jointly and severally with him, operates in fact in the relationship between the condominium owner and the successors in title and not also in the relationship between the latter.

Article 63, in its last paragraph, states instead that: "whoever transfers rights to real estate units remains jointly and severally liable with the successor in title for the contributions accrued until such time as a certified copy of the title determining the transfer of the right is transmitted to the administrator".

In order to release the transferor from the obligation to contribute to the condominium expenses, it will be necessary to transmit to the administrator the certified copy of the deed of transfer, since the administrator's duties include keeping the condominium register containing the particulars of the individual owners and holders of real and personal property rights, as well as changes in the aforementioned data, which must be communicated to the administrator in writing within 60 days.

It follows that until the date of transmission of that certified copy, the transferor is jointly liable with the purchaser towards the condominium for all condominium contributions accrued until then.

This duty of information is incumbent on the transferor, who may bring an action in recourse against his predecessor to recover the full amount paid to the condominium.

However, after the administrator is informed of the transfer, according to settled case law, he may obtain payment of the condominium fees only against the new owner and not against the seller of the property; it will then be the purchaser of the premises who will be able to act in recourse against the seller.

In the absence of a specific clause in the contract of alienation fixing the criteria for determining who is under an obligation - in domestic relations - to pay the condominium expenses, the Supreme Court has sometimes held that such expenses must always be borne by the owner when the obligation to pay the relevant sums becomes effective (without regard to whether or not the owner was an owner at the time the resolution was passed), whereas more recent guidelines distinguish expenses necessary for the ordinary maintenance, conservation, enjoyment of the common parts of the building or the provision of services in the common interest from those relating to works that imply an innovation or a charge that is significant by reason of their particularity or size.

For the first type of expenses, the condominium's obligation arises with the actual performance of the management activity that determines the disbursement by the administrator, on the assumption that the payment of ordinary expenses falls within the administrator's own powers. Therefore, such payment does not presuppose a prior resolution of the condominium owners taken when the annual budget is approved.

For the second type, on the other hand, the condominium assembly is called upon to determine the quantity, quality and cost of the intervention, following the meeting of which, the resolution would take on the value of the constitutive source of each condominium owner's obligation to contribute to it.

The question therefore arises as to who, in the event of the sale of a condominium unit, should bear the burden of paying the so-called 'extraordinary' expenses.

In this regard, it seems preferable that the contributions due for extraordinary maintenance, renovation or innovation works on the common parts and for works exceeding a certain amount be borne by the owner at the time of the shareholders' resolution approving the said expenses.

From the last paragraph of art. 63 disp. of the Civil Code, it is also possible to derive the principle that, in the event of the alienation of the real estate unit under the condominium regime, the emergence of the status of condominium is perfected at the time when the transfer is made known to the condominium in documentary form.

Therefore, since the former owner has lost the status of condominium owner and is no longer entitled to participate in the assemblies, and can assert his reasons for the payment of the contributions for the current or previous year only through the purchaser who has succeeded him, no injunction can be sought and issued against the former owner for the collection of the old condominium contributions, given that the rule of law in question can be applied only in respect of those who are condominium owners at the time when the application for an injunction is made and given also that the obligation to pay arises from the relationship of a real nature linking the obligor to the ownership of the property.

Lawyer Milena Maria Oggiano