Outsider as President?

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12 Jan 2010 00:00 by oafc1955 Star rating. 1 posts Send private message

It is our AGM soon and the president is standing down for personal reasons.

Nobody seems to want to take on the responsibility and it has been advised that lots will be drawn at the AGM to elect a new president. 

Whoevers name is drawn will have to serve the community as president for next year.

It is a difficult situation as there are no residents on our urbanisation and at present  they are all holiday homes......Can we appoint our present Spanish administrator to act as president in the event of no suitable candidate coming forward?

Obviously this would involve a cost but would be better than forcing the job on to a reluctant home owner. 

 

 

 





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12 Jan 2010 15:46 by Karensun Star rating in Orihuela Costa. 1744 posts Send private message

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A President must be a property owner at the Urb he/she is President of.

It doesn't matter if they are not resident but they must be an owner so unless your Administrator is an owner you cannot do this.

in practical terms it would be a conflict of interest for your Administrator to be president.



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13 Jan 2010 00:12 by EOS Team Star rating in In Spain of course!. 4353 posts Send private message

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Karen, I think you can actually be the president even if you are not an owner.

I do know of a few communities on the Costa del Sol that have outside individuals that are paid to be president.

Whether it's right or not is another matter....

Justin



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13 Jan 2010 07:30 by mariadecastro Star rating in Algeciras (Cadiz). 7925 posts Send private message

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 President needs to be an owner.

Administrator or Secretary/Administrator can be an outsider



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13 Jan 2010 11:54 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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As María, Karensum and the law said presidents must be owners but until a court declares the nullity of the appointment, the president will hold the office.
 
Problems arise when this kind of president has to act on behalf of the community at court; in those cases the other party could argue the lack of legal representation.
 
The Supreme Court   holds that resolutions adopted by owners appointing a president who is not an owner are null and void so it is not subject to any term to contest them at Court.
 
In regard of resolutions adopted in meetings in which the president is not an owner, courts do not agree whether they are null and void or simply avoidable. In the first case, the resolution was never valid in law, whereas in the latter the resolution will stand unless it is voided or reversed. Another difference between them is related with the term to contest; nullity has no term whereas voidability has two terms established in section 18; three months or ‘one year in the case of resolutions contrary to the law or against the Articles’
 
The avoidable approach was held by the Court of Appeal ruling in Guipuzcoa 24-11-2004 among others These courts held that those resolutions in which a non-owner is appointed as president necessarily must be challenged within one year under section 18 (3) of the Act, otherwise the resolution will be cured as well as those others adopted by the community under this allegedly president.  
ii.             The nullity doctrine was held by the Supreme Court judgements above mentioned and by the Court of Appeal ruling in Valladolid 06-05-2004 and the CA ruling in Barcelona 20-09-2004.


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14 Jan 2010 14:50 by TechNoApe Star rating in Duquesa, Manilva. 1291 posts Send private message

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Ah ha!

This answers my question.

We have a President that was elected last years AGM (2008) and he is not an owner.

During the AGM I objected to him standing as President as he was not an owner, and after a period of silence the Administrator said that he was allowed to stand as President as he was the representative of a company (the promoter) who owns property.

There was another owner who stood for President, however he did not win the vote.

This year (2009) I did not receive the call to the AGM (which was held just over 1 month ago) and the current President was again allowed to stand for the same reason, and again was voted in.

However, it is my understanding of the HPA, that a person wishing to stand as a representative of a company must be either the Managing Director or the Administrator of that company.

Seeing that he is neither, and further seeing that he has nothing to do with that company as he is not even an employee, I believe him to be an illegal President.

If this is true, and reading below "The Supreme Court   holds that resolutions adopted by owners appointing a president who is not an owner are null and void so it is not subject to any term to contest them at Court.", does this mean that I can just go to the Police Station and Denounce him and the Administrator, as I believe the Administrators are also acting in an illegal fashion?

Indeed I have asked to meet with the Administrators to point this out ... and they have thus far ignored me!


 



This message was last edited by TechNoApe on 14/01/2010.

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14 Jan 2010 15:46 by Karensun Star rating in Orihuela Costa. 1744 posts Send private message

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Quote from The Horizontal Property Law...........................


The president holds wide powers and represents the Community between General Meetings. He must be one of the owners, while the administrator can be a professional not owning a property in the Community.

It seems pretty straight forward to me !!!



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15 Jan 2010 11:35 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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Nothing to do with Police  and denounces since it is a civil case, thus you need to bring a civil action.
This action is provided by section 19 of the HPA
 
19 (1) The decisions adopted by the Owners’ Committee may be challenged in court, in accordance with the terms of the general procedural rules, in the following circumstances:
 
(a) When such resolutions are contrary to the Act or to the Articles.
 
It is also established by this section who is entitled to challenge
 
19 (2) Owners who recorded a dissenting vote at the meeting, those who were absent for any reason and those who were improperly deprived of their right to vote shall be entitled to challenge these decisions
 


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