Community problems

I wonder if any members have experience with regard to Committee matters in a community.

We have regular AGM's when we elect or reelect Committee members, including the President and Administrator, The ones that we currently have are really excellent. They do a good job and the community has been thriving with a healthy bank balance.

Sadly, we have a few members (mostly Spanish) who are intent on causing trouble, so much so that at the last AGM the Policia Local were called in to quiten things down.

This has been going on for quite a while, and the latest incident has involved one Spanish resident calling himself President, tried to appoint a new Adminstrator and Vice President. I know that this must sound odd but it's true. They even went to the bank to try to appropriate money from the account. The result being that the bank has frozen the account. This self appointed President is now trying to persuade other foreign residents to support him. There is an AGM due in March but I would be interested to hear any points that might stymy this underhand action.

Regards, John

 

 

 

1. The governing bodies of the community shall be the following:

 

a) The owners’ general assembly.

b) The president and, where applicable, the vice-presidents.

c) The secretary.

d) The administrator.

 

The community statutes or a majority resolution of the owners’ general assembly may establish other governing bodies of the community but only insofar as this does not entail any impairment whatsoever of the functions and responsibilities to third parties that this Act attributes to the aforementioned.

2. The president shall be appointed from among the unit owners by election or, if this could not be achieved, by rotation or by drawing lots. Acceptance shall be compulsory, although the unit owner designated may apply to the court for his/her replacement within one month of taking office, invoking the motives. The judge, following the procedure established in the last paragraph of section 17, shall issue an order as he/she shall see fit, designating, where appropriate, the unit owner who shall replace the president in office until such time as a new appointment is made within the term determined in the court decision.

The judge may be equally approached where, for any reason whatsoever, the general assembly found it impossible to designate a president.

3. The president shall legally represent the community both in and out of court in all matters related thereto.

4. The existence of vice-presidents shall be discretionary. They shall be appointed by the same procedure established for the designation of the president.

The vice-president, or vice-presidents in the order prescribed, shall replace the president in cases of absence, vacancy or incapacity, and assist him/her in the exercise of his/her functions under the terms established by the general assembly.

5. The functions of secretary and administrator shall be carried out by the president of the community except where the statutes, or the general assembly by a majority resolution, provide that such offices be held separately from the Presidency.

6. The post of secretary and that of administrator may be held by the same person or by persons appointed separately.

The position of administrator and, where applicable, that of secretary-administrator may be discharged by any unit owner, or by natural persons with adequate professional qualification and legally licensed to perform such functions. It may also be held by an artificial person, a corporation or other artificial person in the terms set out by the law.

7. The term of office for all governing bodies of the community shall be of one calendar year unless otherwise provided for by the community statutes.

The persons designated may be removed from their posts before the expiration of their term of office by a resolution of the general assembly, convened to hold an extraordinary session.

8. Where the number of unit owners in a building does not exceed four, they may opt for the system of administration provided for in section 398 of the Civil Code if so prescribed by the community statutes.

 

 

Maria, gracias for your comprehensive reply.

Is it correct that, say half a dozen owners, can get together, call it a general meeting (without notice to other owners) and then appoint a new 'President' and Committee. I don't think so. Do you? What do you think should be done to stop this continuing?

Regards,

John

Call of the "subversive" :)  meeting

I. Article 16 of the Horizontal Property Act

1. The meeting of the general assembly shall be held at least once a year to approve the budget and the accounts, and in any other time the president sees fit or upon request of 25 percent of the unit owners or a number representing, at least, 25 percent of the assessment quotas.

2. The summons for the meeting shall be made by the president or, failing this, by the promoters of the meeting, and shall include the items to be dealt with, the place, day and time of the first call and, where applicable, of the second call. The summons shall be made in accordance with section 9. The summons for the meeting shall include a list of unit owners with outstanding debts payable to the community and advise of the deprivation of their voting rights where the case falls within the situation described in section 15.2.

Any unit owner may request the meeting to examine and resolve on any matter whatsoever concerning the community. For this purpose, a letter should be sent to the president setting out clearly the items requested to be dealt with. The president shall include them in the agenda of the following meeting to be held.

Should a majority of the unit owners representing a majority of the assessment quotas not be present at the time of the first call, the meeting shall then be convened on second call with no quorum being required.

The meeting shall be held on second call at the place and on the date and time set forth in the first summons and may take place the same day at least half an hour later than the first call. Failing this, it shall be called again, in accordance with the requisites set forth in this section within eight natural days of the meeting not held. In this case, the notification of summons shall be at least three days in advance.

 

Quorum needed for the appointment of a new President you need majority:

II. Article 17 of the Horizontal Property Act. Section Third.

All other resolutions shall be adopted with the vote of a majority of the total number of unit owners representing a majority of the assessment quotas.

Where the meeting is held on second call, the resolutions adopted by a majority of those present shall be valid if they represent more than half the value of the assessment quotas of those present.

Where a majority cannot be reached by the procedures provided for in the preceding paragraphs, the judge, on petition of an interested party, made within a month of the date of the meeting held on second call, and after hearing the litigants, duly cited, shall adjudge in equity within twenty days from the date of the petition, awarding legal costs to the corresponding party.

Hope this clarifies

 

 

 

 

Hola Maria

I have received your very detailed email, and, once again, I can only offer my profound thanks for your help.

Muchas gracias

John

Hi John, welcome to the weird and wonderful world of Communities! Click on this link, it will take you direct to the full English translation of the Horizontal Property Law here on EyeOnSpain, in PDF format, so that you can save it on your PC or even print it out, bind it in leather and keep it by your bedside for bedtime reading! You will soon be quoting chapter and verse at your AGMs, impressing your neighbours with your knowledge - but beware, you may well find yourself being "volunteered" as next president. Resist! It is most definitely a poisoned chalice.

Roberto. Thanks for your interest in this matter, and for your kind and helpful reply.

I'll now download the pdf file, but whether I'll take it to bed, or even to the bedroom, will take a bit of thinking about. However, I'm sure the information will be useful.

I never cease to be amazed at the helpful (and free, Les) and knowledgeable posts that are made on these web pages.

Regards

John

The bill is in the post

Check that all the people at the 'subversive' meeting(s) had paid their community up to date. If they haven't they are not entitled to vote at any community meetings.

 Degato34:

Thank you. It has been a pleasure.

Best,

Maria

hiya folk's, looking at sec.13 horizontal comm. law, it state's that the admin. is part of the governing body of the community, does this mean that they can have a say in what owner's cast a vote on ? thank's in advance.  bluefox.

If you mean, do they actually have a vote, then unless they also happen to own a property within the community, no.

thank's  for that roberto, i actually thought that myself but just wanted someone to verify it, i think what happened was one of the owner's came out with it and probably got "their wire's crossed" and as you may know an apt. complex can be the smallest village in the world, and once a story go's around it start's off a mole hill and end's up everest. thank's again.

another couple of queries please to you well informed member's, no.1 when a president is ellected, is there a procedure at the court to go thru' as in legally being "sworn in" ?  and no.2  does an outgoing pres. have to sign a document as to legally " sign off" so to speak ? thank's in advance, regard's bluefox. 

almost forgot, i got one more querie, when a multi property owner in  a complex, whether it be 2/3 properties or owning 20/30 props. how many vote's at an agm are they entitled to, thank's again  b/fox.

Hello bluefox

I'm no expert, and I'm sure that I might be contradicted, but I would say that common sense would dictate that there is only one vote per property, no matter how many joint owners and in whatever proportions. It being Spain, this might not, of course, be the case. There could also be the possibility that with joint ownership the voting member would require written confirmation from the other joint owners.

Hope that this helps.

Regards,  degato 34

The minutes (actos) of the AGM will record who has been voted in as new president / vice-president etc. This is all that is required. No big ceremony  unfortunately, no court involved. The adminsitrator will arrange the change of signatories with the bank, presumably using the actos as evidence of the validity of the new appointment. I don't think the outgoing representatives need to "sign off".

 

Generally speaking, 1 property 1 vote, but "resolutions shall be adopted with the vote of a majority of the total number of unit owners representing a majority of the assessment quotas". In other words, if someone (the promotor for example) owns 20 properties, they will have 20 votes, but if push comes to shove, it's the % quotas as per each deed that count.

(Sorry, no idea why my font has gone haywire)

This message was last edited by Roberto on 07/04/2010.

I have only been to a couple of AGM's over the years, but I always read the minutes.

I'm sure that you are right Roberto. Only one vote per property, but the size of the property quota means that the larger property is worth more than a smaller property when they are added up. Makes sense, doesn't it.

P.S. Just booked theatre tickets for Friday to see 'Cider with Rosie' written by Laurie Lee - a true friend of Spain.

 

This message was last edited by degato34 on 07/04/2010.

A GOOD COMMUNITY IS WORTH ITS WEIGHT IN GOLD

25% of members can demand to call an EGM to elect a new president or administrator.  The process is complicated , exhausting and time consuming so you will need the assistance of a solicitor, but it can be done.

It is essential to get as many votes as possible, so try to get the proxy vote of as many members if you can.

Make sure to cross all the "T" and dot the "i", you don't want the meeting to be nullified due to a technicality.

It is not possible to be a self appointed president. The law will not recognise it. The president needs to be voted in during an official meeting of the community.  

When push comes to shove, you may find yourself very much alone as support begins to dwindle.  It is a mugs game, I was that mug. 

However, in the first 6 months we called an EGM to vote out our self appointed administrator (the promoters), and appoint a new, more transparent administrator and new maintenance company.  This cost the promoters several thousands of euros of potentially, regular income. It is sometimes called FF for "Fleecing the Foreigners". 

Several attempts were made by the promoters to discredit me including a demand for eighteen thousand euros at the first instance followed by a court tribunal, sueing me for half a million euros for damages to their reputation.  The demand came to nothing after a good solicitor dealt with it and the court hearing was well, "thrown out of court" by the same solicitor.  

From 2005, I struggled for 3 years as president but as a result (with the help and support of the community and our new administrators), we have been spared the potential problem of extortionate community fees and continuous demand for extra money from the promoters.  \[resently, we are legal and fully registered with the land registry, with our escrituria, nota simple, LFO, utilities, post boxes, clean and well maintained swimming pools and gardens.  

As a community we will always find something to fall out over however, we are pretty darn lucky considering what could have been if we did not stick together as a community.  It is hard work but worth it.  

" Just because you are paranoid does not mean they are not out to get ya".  Stand up and be counted!  

A good community is worth its weight in gold.     

hiya again folk's, hope i'm not being a pain in the "you know where," just another bit of info please...........is there any restriction's on the number of proxy's that can be held by one owner to take vote's at a meeting, egm/agm ? as it seem's in the case in our complex that the proxy holder is now v.p. and he held over 40 proxy's at our last egm, and it turn's out that the owner's that "voted" by proxy gave the new committee to vote in their own favour no matter the outcome, it just does'nt give the rest of us much of a choice as to what happen's, again thank's in advance. bluefox.

 There is no restriction on the number of proxy votes any owner can hold.

The holder, plus the proxy owners votes they hold, must be up to date with their community fees, if not, they can't vote.

What we have in our community is this: Any proxy votes are sent to the Administrator with their personal vote. The holder of their proxy can only vote at the meeting on their behalf on any vote AT THE MEETING.

This restricts the person holding proxy votes, so they cannot vote for agenda items in which ever way they personally would choose.

This is a very fair system

Hope this all makes sense!

To Fibbyuk:

It still means that the person with proxys can vote (at the meeting of course) as they see fit as they legally represent that person. I cannot see how it will restrict them from voting.  You are right there are no restriction as to how many proxys a person can hold.  Basically, if you want something passed you have to get as many members to support you.

It is not easy as some folks tend not to want to get involved and others just love to complain after the AGM (not attending or giving anyone their proxy).  If you want to make your community work you have to work hard to encourage members to participate in community decisions for example:  encourage good community spirits by organising social events, making a point to communicate information through e-mail or community web sites.

Explain community issues to members as it all affects everyone within the community.  Nothing works in isolation.  It is a full time task and not very rewarding at times or so it may seem.  However, when members come together for the better, it is all worth it.  Our apartments are our investments, so by actively participating in community issues we are not just looking after the community but also ourselves.

 Hi meijoo

I thought my post looked a bit muddled

I will try to explain better......................

This is how we vote in our Community:

Voting papers sent out with agenda

People vote on the agenda items, using the voting paper and return it to the Administrator.

They then give their proxy to another person who is attending the meeting.

This ONLY entitles the person given proxy, to vote on any issues brought up at that meeting. Using the proxy vote to decide on their behalf which way to vote.

They cannot change the paper vote in anyway...........

This is what I meant about restricting the person who is given proxy votes.

Your Community should take a vote for this system for the future. It is very fair and votes cannot be manipulated.

Hope this makes sense now!

Hi FibbyUK,

It is a good idea however, the person with your proxy is legally your representative during the course of the AGM.  How legal is the paper vote, in the eyes of the law, here in spain?  Could the opposition declare it null and void?  I remember when we removed our administrator (the developers), they were trying to find every single loop hole to declare the meeting null and void. I had to be extreemly careful not to give them any opportunity to do so.

From experience, votes are counted by the show of hands during the course of the AGM. So if I show my hands to vote on a particular item on the agenda, the proxys I have will be included in the number of votes.  I think that your suggestion is by far the fairer however, I wonder how legal it is when push comes to shove.

Cheers.

 Hi

Our Community used to operate in the way you describe, however, we voted in to use the voting paper system for fairness and it got a resounding "yes"

Our Administrator collates the paper votes and adds them to the show of hands.

I would assume that this is perfectly legal as we, as a Community, have voted into into our constitutional rules.

Our Adminstrator would have advised our Presdiente otherwise if this was not legal.

Check with your Administrator, he/she should know.

Kind regards,

Will check with them, thanks for sharing that.  Regards.

thank's for that folk's, i know out dificult it is to get some point's over in writing, so to speak, but the one point i mean, is that the one proxy holder vote's on behalf , as you say, the proxy's he hold's, but they have gave him his choice or trust in whatever he feel's that's right, so, at the end of the day, he can overturn any decision that the rest of our community might vote on, as, of course he has the majority, again, in our case, 40 proxy's, so the rest don't get a say, it could be a possibility that some of the proxy "sender's" would not agree when their holder has cast a vote on their behalf, then, of course, it's to late, so, that's why i asked if there was any restriction's as to how many one owner can hold, and i feel there should be, let's say no more than ten. regard's     

 I understand entirely what you are saying Bluefox.

This is exactly why our Community voted our system in.

But, unless you change your Community rules, there is NO LIMIT to the amount of proxy votes any one member can hold, or how they use those votes.

In fact, it is also law that the holder of the proxy vote, does not even have to own in the Community. They could be a friend, renter, associate, anyone!

Scary isn't it!

Get you suggestion in to change the proxy voting system, get is passed, it's the only way to combat this.

Kind regards,

hiya folk's, yesssssssss ! it's me again, this time, could anyone tell me........is there any time scale on receiving the minute's of an a/egm, it was mentioned that within 10 day's but i can't find anywhere that state's that. we have a new admin. and they tell us that the delay has to do with some document called a "notas simples" not sure on the spelling, but can't find anything on that either, anyone out there that could explain ? thank's a mill again. regard's bluefox.   

forgot to say, we had an egm 5ish wks ago, as yet no minute's. regard's