Working out Community Fees

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20 Oct 2009 00:00 by leeabby Star rating in Old Kilpatrick, Glas.... 132 posts Send private message

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Hi,

I am just home from Spain and our community meeting.

Last October 2008 it was our first meeting and it was voted that, since it was the first year, it would be easier to make each flat pay an equal amount rather than a percentage, so this was voted in .  It was to be for one year only.  We had an ''interim'' meeting in July to decide thaqt after this years meeting on October it would be changed to July to allow for more flat-owers who are non-resident to attend the meeting. At this meeting I had with me my contract and asked if we would be returning to payment of fees, as per Spanish law, according to the percenage of property size owned.  Alot of the owners said it had already been decided that we pay equally and someone else spoke up to say they had attended the previous meeting and that was only for the first year, although it does not state this clearly on the minutes.  Anyway, I brought it up at our meeting last week an d stated the same to our administrator who answered that again , we had agreed the previous year to pay equally, but that I was correct that it was Spanish law and in both my contract and deeds.  He then  went on to say that only ONE vote from one person had to raise their hand to keep it the same, so of course someone raised their hand as they own a large property with a large patio area and are obviously not paying what they should be if the quota were enforced.  I told him then that this voting system meant that it would never be changed back if all it took was one vote to keep it the same.  To that he just shrugged his shoulders.  I asked that it be noted in the minutes that I was not happy and would be contesting this decision.  My fees are now 420 euros per year, but I reckon that they should be well under 300 euros per year.

Surely I can do something legally about this as it is clearly in both my deeds and contract??  There are others who are not happy either, I am not on my own.

 

Any advice would be appreciated.

Thanks.

 



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20 Oct 2009 17:17 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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As it was stated by the ruling of the Court of Appeal of Alicante 21th January 2009 the equal contribution regardless of the allocation established in the title is only valid if there is unanimous consent of the Owners' Committee.
Unanimity was also required by the same court in its ruling of 29th of May 2009 regarding equal distribution of expenses in a community


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20 Oct 2009 17:51 by leeabby Star rating in Old Kilpatrick, Glas.... 132 posts Send private message

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Yes, I understand.

But at Oc tober 2008 meeting it was voted to pay equal shares for one year only....I know of at least one couple at the meeting who agreed to this...now the administrator is saying that because it was voted to change for good, that a vote to change it back had to be unanimous...which it will never be because too many people are now underpaying.

 

I'm trying to tell the administrator that if it had been stated to change it to equal payments for ever, then he would never have had a unanimous vote last year to change it in the first place, as I know of at least 5 or 6 couples who did not vote to change it forever , it was only unanimous as the voters thought it was for one year until we got up and running.but the minutes just say it was voted to change...not for a year OR forever.  Can we now say that this was an in correct change made last year and have it reverted back to percentage shares ??

 

I hope you can understand what I am trying to explain!!



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20 Oct 2009 18:23 by jenkinsmjj Star rating. 2 posts Send private message

It seems to me that if what 'spanish solicitor' has posted is true then this means that your administrator has turned the law on its head.  It requires a unanimous decision to agree to equal payments - if you dissent (which you obviously do) then the decision is no longer unanimous and an alternative based on proportionality would have to be devised.  Contrary to the one vote being able to stop this it is the lack of one vote (or one vote against) which will stop it.  All you need to do is get a vote called. 

BTW - why is this an adminstrator decision anyway - surely the president of the community is the authorative power, the administrator should be the servant of the community. 





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20 Oct 2009 19:00 by leeabby Star rating in Old Kilpatrick, Glas.... 132 posts Send private message

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Yes, but no-one dissented last year as they thought it was for one year only equal shares.

 

Now this year, because that was not minuted correctly last year,  it looks as thought it was unanimious to bring in equal shares, although the vote was for equal shares for one yearc and not forever.,therefore we will never be able to turn it back.  I am looking for a way to overturn last years vote as we were not voting for the correct thing.

 

Does that make sense to you ??



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20 Oct 2009 19:31 by sandra Star rating in . 817 posts Send private message

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It seems to me that these laws can be stated as much as you like but no-one is taking a blind bit of notice of them. 



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20 Oct 2009 20:46 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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As  jenkinsmjj said the administrator “turned the law on its head”. If nobody dissented in the first meeting  then unanimity was reached.
But if the minutes states that the equal contribution is only for one year then it is possible to revert back to the system established in the title or master deed through ordinary resolution (majority) of the Owners’ Committee. This approach was taken by the Court of Appeal Pontevedra in its ruling of 31th January 2008
 
Dear jenkinsmjj, what I posted is not true or untrue. I just quote rulings of our courts. It is not my opinion

 




This message was last edited by spanishsolicitor on 20/10/2009.



This message was last edited by spanishsolicitor on 20/10/2009.

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23 Oct 2009 13:16 by leeabby Star rating in Old Kilpatrick, Glas.... 132 posts Send private message

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Yes, But I understand.

But, it does not state for ONE year on theminutes...that is why it only took one dissenting vote to keep equal shares rather than go back to percentage shares, I am sure though that we would win a 'majority' vote  if it had stated ONE year as we have enough people in 'smaller' properties.

So, what I wish to know is...do I go back to the legal advisor for our administarator and say that the vote in  2008 was only unanimous because we voted for one year but as the minutes state only that it was voted to change to equal shares, but does not mention any time, that in fact the vote was not correct..???....because as you stated if it had b een  stated in the minutes ONE year then  we could have won a majority vote.  If people had known we could not change it back because only one peron dissented it would never have been voted, but again, the dissention vote was taken because the minutes are worded wrongly. How do  go about this now???  Do I just try to explain it this way?

I have also emailed you privately, Mr. Spanish Solicitor, in hopefully a shorter version.

Hope I'm not going on too much, but I do want to clarify the situation.

Thanks.



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23 Oct 2009 18:38 by Karensun Star rating in Orihuela Costa. 1744 posts Send private message

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If it is not stated in your minutes that the vote would only stand for one year, then I do not think you will be able to change it. If you had disagreed with the minutes you could have disputed them for a certain period afterwards but I would expect that period to have passed by now so you may be stuck with this.



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23 Oct 2009 19:18 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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The agreements of the Owners’ Committee don’t require for their existence an ‘ad solemnitatem’ form.
It must be pointed out the distinction between ‘ad solemnitatem’ and ‘ad probationem’ formalities.The former are those that require a class of legal act in order to exist or come into being. In their case, form is substance, in that the transactions, dealings or acts do not exist as such, unless they are executed in the legally regulated form. For instance, donation requires a special form, (a registered deed), for its validity.
The ‘ad probationem’ form is only required as evidence of legal transactions, dealings or acts. It in no way conditions the effectiveness of legal acts, other than in the sense of being thoroughly “legitimated”, whereby it is established that it may only be proved by means of the legally prescribed form.
Bearing in mind the above distinction we can infer that although there is no reference in the minutes about the term of the agreement of implementation of an equal distribution of the expenses of the community that does not mean that the Owners’ Committee did not agreed a term of a year. If the minutes does not refer to the details of the resolution adopted that does not imply that these details don’t exist. “These details could be proven in other ways like witnesses” (Supreme Court ruling of 7th October 1999)
Therefore, you should call for an EGM including in the agenda that issue which would be passed by majority.
You should not care about what the administrator or the president say, the former is as Jenkinsmkjj said a “servant of the community” and the president has only the following functions:
 
i.              To summon ordinary meetings of the OC at least once a year.
ii.             To summon extraordinary meetings when he or she finds it necessary.
iii.            To chair the meetings of the OC supervising its running.
iv.            To acknowledge requests from the owners addressing them to the Owners Committee, in particular those issues stemmed from section 7 (1).
v.             To prepare and bring court actions representing the commonhold demanding commonholders to cease in their actions in accordance with section 7 (2).
vi.            To warn owners of breaches in their duties ensuring that all commonholders observe their obligations towards the commonhold as a whole and in relation to other owners in particular.
vii To sign agreements with providers or suppliers provided that the Owners’ Committee has decided so in pursuance of section 14 (e).
 
So, if you can reach majority at the next meeting the agreement will come into force and only a court could annul it
 
 



This message was last edited by spanishsolicitor on 23/10/2009.



This message was last edited by spanishsolicitor on 23/10/2009.

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