Changing a Community Constitution

I am President of our community and we have our AGM in February.

One of the owners has asked that we have a community constitution setting out the roles and responsibilities of the officers.

I have never actually seen our constitution but from what I understand from reading through some of the threads here it is definied in our deeds.  What I have read there referes to Horizontal Property Law but also states that we all have to contribute to maintenenace of the properties (terraced back to back townhouses).

My questions are:

1. By law would we already have an official constitutions somewhere?

2. If so, my understanding is that you need 100% of owners to agree to any changes.  In practice then, a waste of time considering any changes as you would never get everyone to agree.  I can't even get everyone to respond to my emails!

3. Duties of community officers are definied in Horizontal Property Law - can a constitution over-ride that?

Basically these owners want more accountability of the Administrator/Officers and quarterly reporting on the state of finances and want it written in to the constitituion.

I want to get my facts right before I respond to this owner as they have copied all the British owners in on their email (80% of the total community)

many thanks for any help

There is sooo much of this on EOS that it can be confusing!

Here is a link to the Horizontal Property Act (In English), that's a good place to start.

First off:

"What I have read there refers to Horizontal Property Law but also states that we all have to contribute to maintenance of the properties (terraced back to back townhouses)."

Yes! Every owner pays 'Community Fees' which contribute towards many things including maintenance of the community.

And in answer to your questions:

1) Yes! Your administrator will have a copy.

2) No! To change anything with regards to how the community is run, then the request must be presented at an AGM or EGM and it must be included in the Agenda prior to the convening of the AGM/EGM. Then a vote will take place during the AGM or EGM. If it's not in the Agenda, then it cannot be voted on during that meeting, and must be proposed and voted on to include during the next meeting.

During the AGM or EGM, you only need 51% of the quorum (those officially attending or officially represented via proxy) in order to make the necessary change take effect. Note that anyone in arrears of the community fees will not be allowed to vote, however can attend the meeting.

3. As far as I am aware, the duties of the community officers can be supplemented by such that is agreed via vote at and AGM or EGM.

Lastly, having quarterly reporting on the state of finances and want it written in to the constitution is a waste of time.

A simple quarterly News Letter stating 'What's going on in our Urb.' is all that's required to keep 'bothersome' owners happy. If they wish to know the state of the finances then they can simply contact your administrators and get all the info they need from them!

Thanks for your reply.  I have read through the horizontal laws document which I think is quite clear on the way communities work in Spain - maybe I should send it out to all the owners!

That document seems to pretty well define the role of President and Administrator and personally I don't see any need to "supplement" them.  We are having trouble getting our Administrator to do what he is supposed to do now and are actually trying to vote to change him at our AGM.

I know you only need a majority of those present at the AGM to make any decision (plus proxy votes) but I read someone to actually change your constitution needed "unanimity" doesn't that mean 100% support of all owners or just 100% at the meeting?  Either way impossible!

Be grateful for clarification of that.

I agree about the quarterly finances.  I send out emails when there is anything to tell people and have set up a private forum for people to discuss issues.  Can't see that I can do any more.  Having an AGM in February means a very poor turnout of non-residents but our year end is 31st December so it really has to be then.

thanks.

"I read someone to actually change your constitution needed "unanimity" doesn't that mean 100% support of all owners or just 100% at the meeting?"

In order to change the constitution or the coefficient of a community, then you need 100% of the owners approval, and not 100% approval at an AGM or EGM of those present or represented as constituted by the quorum.

So in other words, every single owner must vote "Yes".

If one owner votes "No", even if that owner is the President, then the constitution or the coefficient cannot be changed!

"I send out emails when there is anything to tell people and have set up a private forum for people to discuss issues.  Can't see that I can do any more."
 

Agreed!

No matter what you do as President, there will always be one owner who will be in pain in the... well, you know where! This person usually either wants to be President themselves, as they think it's easy and there's not much to do, or they are the type of person who moan and bitch about everything in life, and yet remain resident when it comes to do something about it.

This is why I am no longer the President of one of the communities where I own a property because of so much back-biting from British Non-Resident Owners!

thanks for the clarification - that's what I thought - impossible!

Sorry!

In the mean time I edited my last response with regards to what you are doing as President.

agree entirely! Don't think anyone wants to be President though.  I have said I will only carry on for 2011 and for 2012 someone else will have to step forward. 

I am quite fortunate in that most owners are very supportive - there are just 2 or 3 that are a bit difficult.  I just don't think they understand that most Spanish communities don't do "organised"!  It is a  slow painful process to get things running a little more smoothly. We have about 20% Spanish and most of those go to the community meeting because it is local.

"Basically these owners want more accountability of the Administrator/Officers and quarterly reporting on the state of finances and want it written in to the constitituion".

Why? Do they find annual accounts too much to go through? Do they not trust you? If they want to be involved to such an extent, there's a very simple way.  Oh.....but......."Don't think anyone wants to be President though". How typical.

Sounds to me like you're doing a great job. Don't let the b*ggers get you down.

Can anyone help? What is the difference between the Master Deed & the Community Statutes & where do the Statutes come from? The reason for asking is that our Community has been told that we do not have any Statutes! There has been an on-going dispute about the amount of fees paid by each owner. Everyone has always paid the same despite the property sizes being vastly different. When owners in the smaller properties have tried to propose that we pay according to the coeficiente we were unsuccessful because we didn't have unanimity.

More or less one and the same thing. The statutes are the basic rules for the community set out in the master deed, which is produced at the time the community is formed.

All owners must contribute according to their coefficient as stated on their individual deed (and noted in the master deed). No vote, no unanimity needed - this is LAW. (Horizontal Law section 9.1.e) Find out what the agreed annual budget is, and then calculate your percentage share, and pay that much. If there is any dispute about this, you should be able to pay the money to a court pending settlement of the argument. This way you will not become a debtor since you are paying your fees, but the community will not be able to get their hands on the money. This should prompt them to take action and correct the situation. The resistance is obviously from the owners of larger properties. They are WRONG.

Thanks Roberto, that's very helpful. I have just paid in full for this year so I'll have to wait a while to follow your advice. In the meantime, if a lot of owners wanted to make sure the current practice of all paying the same continued is there a way tthey can try to do it?

I don't think so. I may have been slightly hasty in my previous reply, because the Horizontal Law specifically states that owners must "contribute, according to the assessment quota set forth in the master deed or to what may have been specially established". There does exist a master deed (it will be registered at the land registry, the adminsitrator should be able to obtain a copy if necessary). I suppose it would be necessary to check to make quite sure that there isn't in fact a statute to the effect that every property will contribute equally (I think it's unlikely). Assuming there isn't such a statute, unless those owners can come up with a properly passed and recorded resolution stating what "may have been specially established" to change the statutes, the former must apply, i.e. to contribute according to the assessment quotas. In order to change the stautes now, a unanimous vote would be required. (Obviously, never gonna happen!)