Condominium Ownership (CO)
What to do if the condominium administrator fails to convene the assembly? From the right to request a meeting to court proceedings: the concrete steps under Swiss law.
The condominium administrator fails to convene the assembly: what to do?
It happens that the administrator of a condominium ownership refuses to convene the assembly of co-owners, or simply ignores the request. The reasons are often difficult to justify. In any event, co-owners need not remain passive: Swiss law provides precise instruments to resolve the situation.
The right to request a meeting
One fifth of the co-owners may demand the convocation of an assembly at any time, as established by Art. 64(3) CC. The calculation is based on the number of persons, not on the value of the shares. What counts is the "head", not the proportional share (BSK ZGB II - Bösch, Art. 712n N 2).
The request need not even specify the reasons. The right exists even if the condominium regulations do not expressly mention it (Wermelinger, La Propriété par étages, 2002, p. 574).
If the administrator does not respond
Where the administrator fails to act upon the request, the ordinary remedy is to apply to the court (ZK - Wermelinger, Art. 712n CC N 23). An exception arises where the regulations confer on other bodies, for example the committee or the auditor, the power to convene the assembly in place of the administrator. In practice, such a clause is rare. Hugo Haab, Attorney-at-Law, and Roberto Haab, Attorney-at-Law, regularly advise their clients to have such a provision included in the regulations, precisely to avoid the need for court proceedings.
Standing to bring proceedings belongs to each individual member of the condominium owners' community (cf. Art. 712m(2) CC), even if that person did not submit the initial request to the administrator (CR - Jeanneret/Hari, Art. 64 CC N 15).
The applications to be made to the court
Where the regulations provide no alternative, it is necessary to apply to the court. The experience of Haab Law Firm and Notary Office suggests presenting the following prayers for relief, in order of preference:
- Request the court to authorise the applicant co-owner (or the committee or auditor) to convene an extraordinary assembly directly.
- Request the court to convene the extraordinary assembly itself.
- Request the court to order the administrator to convene the assembly within a time limit set by the judgment.
The first two options are clearly preferable to the third. If the court orders the administrator to act, the risk remains that the administrator will continue to delay. The possibility for the court to convene the assembly itself is recognised by part of the legal doctrine by analogy with Art. 699(4) CO (BSK ZGB II - Bösch, Art. 712n N 2), although the question remains debated.
A point often overlooked: in the proceedings, the court should be asked to impose the court costs and the party compensation on the defaulting administrator. The administrator's inaction must not place a financial burden on the co-owners.
Legal assistance in Lugano
If the administrator of your condominium does not convene the assembly and dialogue has not produced results, Haab Law Firm and Notary Office in Lugano can assist you in the court proceedings. Contact us for a consultation with Hugo Haab, Attorney-at-Law, or Roberto Haab, Attorney-at-Law.
For a personal consultation: info@haablegal.ch | +41 91 913 30 70
