Community charges - who pays the short fall

And if opposed Maria (playing the system) what happens then? Does it languish in the Spanish court system or is there a speedier route to recompense and accountability?

May I ask if judges have the authority to deny opposition to claims if they consider that those in debt are playing the system of delays? Is there any way for them to study the opposition claim within a limited timescale to deter abuse of this nature?

Thank you both, Mariadecastro and Ads, for your line of thought.

It is clear that as a President I need to gain the majority approval of Owners before the Community can start legal procedings against debtors.

Is it possible to have a VIRTUAL GENERAL MEETING?

Can Owners be asked to vote by email?
I think we only have 3 Owners who do not use email, and realise that we would need to send them details of Proposals by snail mail.
I understand that those who are debtors are excluded from voting but are entitled to enter into any discussion.

As there is an initial cost associated with legal action, I imagine then that Owners would have 30 days to return their vote.
Is it still in order to count abstensions as votes FOR the Proposal?
Is it necessary for Owners to return a digital ballot paper by snail mail?

DaiO.

Hi DaiO

Virtual meetings are held every year by virtue of the fact that you take in proxy votes sent by email.

You have to be tough with debtors, deny them the priviledges that are afforded the community wherever you possibly can, let THEM challenge your right to take the actions necessary and in doing so you make them work harder to maintan a debt situation rather than the other way around where they can just ignore you and you work harder to recover the debt.

Hi Prima

I am the President of Mazarron Country Club and my post related to that Urbanisation... since that post we have gone from strength to strength and with the approval of the owners at our AGM soon to be announced we will do another year in which we will invest in our lovely urbanisation, we are still not employing an admistrator and the difference this has made to our Urbanisation is quite remarkably positive.

Barry

Hi Barry

I thought that you had to have an Administrator by law for a community?

Thanks

Alyson

See the Horizontal Property Act, Section 13 -

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.

Regards

Noreen

Hi Alyson

We were advised very strongly that we HAD to have an Administrator by the incumbent at the time and a year later by one we employed on a front man basis only.... fact is the law is very clear as written in a previous post.

Ours is a big urbanisation with circa 800 villas and was completely out of control when run by the administrator who was based in Mazarron, debts to suppliers, community fee non payers to the tune of more than 30% of private owners, water supply threatened bi-monthly because of non payment by the administrator, 500 homes supplied with electricity by generators operated by the administrator... you would not believe the mess we were in.

We now have only 130 homes supplied by generator and those will go on  Iberdrola in the next days or weeks, we have a very healthy bank balance, we are investing in the urbanisation and our private community fee debt is below 5%.... to concur with Roberto a university education requirement says a lot about the the collegio and it's standards rather than highliting the efficiency of the Administrators profession..

Barry

It sounds as if you have done a great job at Mazarron Country Club Fighter2. I am hoping to work towards a clearer and more inclusive administration during my term as President.

It would be nice to think that there might be sufficient interest to have a hands-on approach to self administration but my feeling is that few Communities have sufficient people who would be prepared to do the work on a continuum.

Our Community seems to have been very lucky in that we do not have debts but we also appear to have no Reserve Fund after nearly 6 years.
The first President who was in post for 2 years told me only 2 days ago that the Reserve Fund stood at more than 3000 Euros when he handed over.

The Reserve Fund should have built at a steady 5% of our budget over the 6 years (I think it should be more, 5% does not build quickly enough to cover a forseeable major expenditure like re-rendering).
I can't see it identified in the annual accounts provided with the call for the last AGM.

I would be very interested to know:

1. Is it a requirement to hold a Reserve Fund separately to the general accounts?

2. Who can authorise expenditure from the Reserve Fund and what for?

3. Where should I expect to be able to find it in the accounts?
    I imagine that most administrators use standard software for their business.
    I hope that the way Reserve Funds are held and indentifiable is also standard.

DaiO.

The thread is very very interesting and highlights how little or how much each of us knows about this subject. It is a thread that could go on for years.I would like to see a bit more input from MariaCastro because some of the opinions are way off beam and some spot on.

I can't remember the names as I have just returned from UK and trying to catch up Sorry.

Administrator: Anyone can be an administrator no matter what qualifications they have as pointed out by one poster by quoting the Horizontal Laws. The Horizontal Laws are the third point of reference after the community statutes and the first point is the community rules or Normas.

The normas are set by the president in line with the owners. In our rules we essentially tried to follow the horizontal laws but then added our own bits like "No Dogs", "10% on overdue at month end" etc etc. These sort of things we punish by a doubling of community charges until the barking dog is quietened or removed.  We can do everything possible to enforce these laws but unless we go to court we can not do so.

The statutes covering thigs like coefficients are set in stone and require 100% agreement to modify.

The president is boss. It is as simple as that, that is why he/she is legally responsible for the operation of the community. He/she is the one who goes to gaol or pays the fine. The administrator is there to work FOR the president. This is because the president is elected by you to represent them. He therefore has the power of all the owners behind him. The fact that a community MUST have a president and that in some cases a president is a person who has been elected by the drawing of lots and has no desire to manage the community and simply signs the cheques (which is not even a legal obligation) allows the administrator to simply run the community for his own ends. (nb If in your community it is not written in your rules that two signatures are not required on cheques or transfers then you should raise at your next AGM)

Can we send someone round to beat up the debtors, ban them from the pool area, withold community keys etc. One simple answer NO ~ you (or the president) will go to court. If you have a debtor who rents his appartment you can apply to the court for the tenant to be instructed to pay rent to the community until the debt is cleared. The number of people in the pool per apartment is not possible. How do you police it? It is however a legal requirement to control the number in the pool and the pool capacity must be calculated and displayed at each entrance to the area.

EMail is a fantastic and usefull tool and electronic communication can help save money and unite owners. We have been using email for many years and about 6 years ago started to produce a CD which was updated and mailed to all owners. The first CD contained all community rules, addresses, opening licences etc and this data was added to when needed. The CD was produced after each AGM and had all the minutes of every AGM on it when we decided to stop. We stopped because although the cost was much less than by surface mail, copying etc.we decided to simply store the data on line using "Google Docs". The owners can now access any data by clicking the hyperlink. We also use "google forms" to collect the owners votes for any proposals made.

We also have a "google group" where we keep copies of data and where owners can communicate directly with each other.

We notify all debtors at least twice a month of their debt and consequence. We email as well as individual debt to all owners a full list of debtors as well as posting a copy in the community.

The above is extremely simple and takes only a few minutes a month to do. The hard part is compiling your masterfil in excel if you ever decide to go along this route.

Non email users continue to receive all data that we are legally obliged to send which are essentially invitation to and minutes of AGMs / EGMs

Someone asked about virtual meetings. Well no but also yes. If you have a meeting EGM/AGM you have by law invite all owners with date time and place so anyone that wishes to can attend.

There are certail legal things that must be placed on the agenda.

It is also Paramount that the wording on the invitation relating to the collection of debts for which you are seeking approval from the meeting is legally correct.

You then follow the legal procedures to call the meeting which has only one proposal and you send your proxy form to all owners. They can then nominate a proxy to vote for them at the meeting (say the president or administrator) and return the form. Obviously non debtors will vote for the motion.

We call this type of meeting with a venue "By the pool" and, of course we hold the meeting (It could be in "Bills Bar" if we wished.and in 5 minutes we have our mandate to prosecute debtors and keep the claim value realistic.

Sorry so long hope you can glean some value

One minor legal correction to the post by dnicholsen ...the first point of reference is not the statutes or the normas( not sure of the difference because additions to the statutes have to be incorporated into the statutes) but  the Horizontal Property Act as shown by the final provision in that document copied below:

Final Provision

1. Any general provisions contrary to this Act are hereby repealed. Likewise, those articles contained in the statutes of communities of property owners which may be contrary to or incompatible with this Act are hereby declared null and void.

2. Communities of property owners shall adapt their statutes to the provisions of this Act within one year.

The act is dated 1999 and has had two non relevany updates in 2000 and 2003....I have added the bold text to highlite the relevant detail.

In addition to other comments in the same post about legality of certain actions, I would add that Spain has it's own culture, one that at times frustrates us but only because we resist participating to the fullest extent and that is most definately shown by the practice of playing to the legal systems weaknesses by those who fail to comply with community requirements, they just sit tight continuing to ignore their obligations knowing full well the law will take forever to catch up with them.

By encouraging the community to employ similar tactics as those that don't conform ie. premptive strikes against their community priveliges, it forces the miscreants to get off their bums and do something about their situation... the court route is still as slow for them and they often concede and begin to comply.

Barry

Excellent postings.

Is there any independent association of Community Presidents in Spain to assist and guide newcomers to this role?

You could be a powerful lobby group for reform, given the large numbers of Communities that you would represent!

Just a thought...

Forming an Association of Community Presidents - What a brilliant idea Ads.
So - Volunteers step forward PLEASE.

Thank you too dnicholson.
It is probably all there but perhaps not as accessible as it should be for Presidents, Spanish or not.
Many Spanish Owners will have had experience of Communities before but Communities in UK are very different, not least in that property is held on lease.

I have just returned from a meeting with our administrator.

I was given two pieces if information regarding debtors - are they right:

1. It is NOT possible to register a Community debt against a property at the Land Registry in Spain.
    It looks very much as if Wincham International Ltd may provide a cost effective solution ie: Pursue UK debtors through the UK
    system (or that of any other country with the EU subject cost effectiveness) with all the various possibilities offered under the
    law of England and Wales, or separately, the law of Scotland.

    I particularly liked Malcom Roach's suggestion of a debtor voluntarily assigning the net income of his/her property over to the
    Community until the debt is cleared.
    That really would sort the sheep from the goats and test whether there really is any will to pay at all.

    If a Community may not deprive a debtor of the use of communal facilities, may debtors be deprived of the use of a communal
    facility upon which major expenditure has been made since they have not been paying their dues?
    There is something about that in the Horizontal Property Law, but could it be applied to major repairs to an existing facility?

2. It takes at least a week to find out if a Direct Debit demand has been met by payer's the bank.
    Why is it that banking computers work so slowly and suspend our money in the banking ether for so long?
    OK, perhaps 3 days would be reasonable - but a week!

    I seem to be making my computer work very nearly 24/7, especially since an owner served me up with a trojan virus which went
    out to all my contacts in the blink of an eye causing my email system to be blocked.

DaiO.

Happy to participate in such a group. Why not make Julian work for his living instead of jet skiing all day and put something together with legal support.

I think what you may mean re debtors participating in facilities is that if a proposal, passed at an AGM/EGM for an improvement (not a replacement or repair) then any owner can refuse to pay if the cost to that owner exceeds (I think) more than 3 months community charge. If he does then he is not allowed to enjoy/use the improvement. It is stupid because it can't be enforced. For example if the improvement is a new wall (when the old wall is adequate as a wall but ugly) you can't stop anyone enjoying it. You may be able to stop them using a new pool but extremely difficult.

On direct debits failing then they can fail easily within the month ( We take 1st of the month ) La Caixa and apparently any owner has the right to cancel a taken direct debit up to 2 months after it has been taken.

I have asked Winchals for info but we used a company called Community Fees who promised the earth but delivered nothing, Simply took commision on money that would have been paid any way.

It is a fact that debt collection here is very very difficult and anyone who has large debts has absolutely no incentive to pay (other than a moral obligation ~ don't hold your breath)

 I have always throught that Presidents of Community of owners need to receive good support and instruction. Specially you as foreigners.

Please count with my help for creating the association and help you any other way

Cheers,

Maria

Thank you very much indeed dnicholson for all your detailed input.

It all seems to point to the voluntary assignment as the best try in the first instance.

 It would appear to give Owners who are genuinely having problems but also have a potential for rentals an opportunity to settle their debts to the Community without racking up large amounts of extra fees and costs, losing their capital investment or the goodwill of the Community.

It would be really helpful to see a draft form of words for this type of agreement.

I don't suppose it is too critical as it is a voluntary agreement.

 If there is an agent handling the property, may a signed instruction from the Owner to pass net proceeds from rent to the bank account of the Community until instructed otherwise by the Community suffice?

DaiO.

Some answers:

 It is NOT possible to register a Community debt against a property at the Land Registry in Spain: It is possible once approved the preventive seizure of goods by the Judge.

Someone asked about virtual meetings. They are possible if the system can prove the real identity of owners or proxies.

If a Community may not deprive a debtor of the use of communal facilities, may debtors be deprived of the use of a communal facility upon which major expenditure has been made since they have not been paying their dues?

If the expenditure has been made to keep the commun use he cannot be deprived, if the expenditure is a improvement he can.

    There is something about that in the Horizontal Property Law, but could it be applied to major repairs to an existing facility? This is an obligation of the community and the non payer owner can have a charge on his property due to the lack of payment of these. You can use arbitration ( much advised) to solve possible discrepancies.

I would be happy to participate in an Association of Presidents and Owner Administrators.

Lets break the mould and set urbanisations free from the corruption and inefficiency that prevails at the moment.

Barry

President and Administrator

Mazarron Country Club

Murcia

Now, Fighter2, there is a real challenge.

Thank you very much indeed Mariadecastro.
Our administrator has confirmed today that she agrees, after seeking legal advice, that it is indeed possible to register Community debts at the Land Registry.

Whatever options are open to Communities, I sense that one is always likely to be walking a tightrope of escalating recovery costs compared with the likelyhood of getting most individual debts repaid.

Our administrator is one of the larger concerns in the area.
In common with most businesses, they are there primarily to make money.
She is working towards being more open.
I am still somewhat amazed by the lack of detailed and specialist knowledge - viz registration of debts.
It surprises me that many professionals have not read the laws which apply to their own specialism.

I always seem to have problems encouraging people to believe in the philosophy that the best way is to:

Do something as soon as it needs doing.

Do it correctly.

And so do it only once.

Re-visiting issues which could be resolved easily first time round is such a waste of everyone's resources.

DaiO.