Um olhar sobre o regime das deliberações das assembleias de condóminos

• Autor(a) principal: Leitão, Rita Gomes Faria
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/73609
• topic: assembleia de condóminos; deliberações; quorum deliberativo; condóminos ausentes; nulidade; anulabilidade; impugnação; legitimidade; suspensão das deliberações; condominuim assembly; deliberations; deliberative quorum; absentee condominiums; nullity; voidability; impugnation; legitimacy; suspension of deliberations; Direito

To look means more than to see. To look implies reflexion, crossing information, worrying about understanding what's before us whereas seeing is a cold, immediate, uninterested action. Therefore, A Look into the Regime of Condominium Owners Assembly's Deliberations is not limited to one question only. The reason being that if, at the moment of the choice of the theme we only saw a legal framework with an old regulation wich the impugnation regime we aimed to study and dominate, soon we realised that there was a lot of ground to go before reaching the nuclear issue. Thereby, the reader will quickly conclude that the main goal of this exhibition is not to unravel a great legal issue, but to contribute to the comprehension of this regime, trying to give an answer to all the questions that follow the look over it. Structurally, the text is divided into four parts. The first one purposes to, purely and simply, contextualize, leaving some notes about the way that the condominium administration is divided, maxime about the condominium assembly wich is, after all, the entity that gives birth to deliberations. The second part seeks to demonstrate the modus operandi and the duty-to-be of the action of the assembly for approval of deliberations. The question arises as to whether the procedure for approval by the absentee condominiums is applicable to decisions requiring a qualified majority, to wich the answer is affirmative, with the due adaptations, while recognizing that there is a (serious) legislative gap. The third part results from a strong intersection between the deliberations regime and the spirit of the legislator with the general part of the Civil Code. It was, for us, the most complex elaboration chapter, not only because of the permanent disagreement in doctrine and jurisprudence, but also due to the lack of specific regulamentation. Thus, we provided notions, examples and practical criteria to be taken into account in the qualification of deliberations as null, voidable, ineffective or nonexistent. Finally, we divided the impugnation of the deliberations into two proceedings (non-judicial and judicial). In the judicial process, we tried to answer, among the others, the issues that stood out at first sight: to perceive the importance of communication of the deliberations to the absent condominium owners and who has active and passive legitimacy for the actions of annulment of deliberations. Regarding the first, we conclude that the communication of the deliberations does not influence the deadline for bringing an action for annulment, provided that the absent condominium owners have been regularly convened. As for the second, only the condominium owners who did not approve the deliberations have active legitimacy, not questioning the legitimacy of the administrator; on the other hand, we defend that it is the condominium owners who approved the resolution in the assembly that should be appealed for, not the condominium.