The liquidator is elected and not appointed (art. 1.347 CC), in this sense the role of the council can take on other contours after the choice of the professional liquidator, who is responsible for signing the contract between the professional liquidator and the condominium. Even if the liquidator is the legal representative of his company or the individual liquidator, when elected he already represents the condominium, so there is doubt whether he can sign the contract and sign for the condominium and as a service provider at the same time.
Second Art. 117 CC: Except as permitted by law or by the person represented, the legal transaction that the representative concludes with himself, in his own interest or on behalf of others, is voidable.
To get out of this situation, the condominium delegates powers to its consultants so that, on behalf of the condominium, they sign the contract with the curator. (Article 1.348, § 1 of the CC)
Even so, the directors may or may not have the power to terminate the contract with the trustee, but such termination has its drawbacks and, who sets this limit, will be the delegation of powers of the assembly which will have to take place at the time of the delegation of powers for the stipulation of the contract with the elected trustee. The omission discusses whether whoever has the power to sign would also have the power to terminate the contract without express definition by the assembly.
The revocation of the liquidator must take place in the assembly (art. 1349 CC), i.e. the board may have the power to terminate the contract, but not to revoke the liquidator. Since the convocation can be carried out by the council if it has the power to convene the assembly, by the will of the trustee, or failing that (art. 1.351 § 1 of the CC) by a quarter of the co-owners.
In this way I understand that it is appropriate to formalize the contract for the provision of services between the trustee and the condominium even if it is not mandatory, and the trustee cannot enter into his own contract with the condominium (under penalty of nullity). The assembly, therefore, must delegate powers to the council or to another person appointed by the act of stipulating the contract with the trustee by proposing clauses to protect the interests of the condominium. This also applies to the termination of the contract with the liquidator by a third party other than the assembly.
The resolution authorized by the board meeting puts an end to the contract, but does not serve to define the relationship with the liquidator, which needs to be ratified by the meeting. Failure to ratify causes the liquidator to remain in office and re-establish the terms of the contract, but verbally, unless the assembly sets other terms or declares the signed contract null and void.
The previously agreed amount of service fee is due between resolution by the board and ratification by the meeting. Since the termination of the contract by the board is valid, but since the union requires the election and dismissal by the general meeting, the suspension of the remuneration can be considered unlawful enrichment.
*Rodrigo Karpat, specialist in real estate law and condominium matters. President of the special commission of condominium law at the Federal Council of the OAB
Source: Terra
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