Illegal President?

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28 Oct 2008 12:00 AM by TechNoApe Star rating in Duquesa, Manilva. 1278 posts Send private message

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Hi all,
 
At our AGM last week for the Urb. where we own property, a vote was taken for President.
 
The President who has won the vote does NOT OWN a property in the Urb.
 
A company who owns 20 properties in the Urb. (and who happens to be the Developer) stated that the President represented them, but he is NOT part of that company of owners, and he does NOT work for them.
 
It is my understanding that only an owner, or co-owner who represents a group ownership may stand for President, therefore this President is an Illegal President.
 
If this is correct, can I (and those who agree with me) proceed to lodge a legal appeal with the Ayuntamiento and to force an EGM in order to vote in a legal President.
 
Can this be done without having to have 25% agreement of owners in order to force and EGM?



This message was last edited by TechNoApe on 10/28/2008.

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28 Oct 2008 4:09 PM by Roberto Star rating in Torremolinos. 4541 posts Send private message

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I'm not certain about this, but since this president is clearly not a legal appointment, surely it shouldn't be necessary to take any official / legal action to remove him?
Do you have an administrator? He should be advising you on this, and this appointment should never have been permitted at the AGM. Go on, surprise me. The administrator is a sister company to the developer?????


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28 Oct 2008 4:30 PM by TechNoApe Star rating in Duquesa, Manilva. 1278 posts Send private message

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Hi Roberto,

Quite possibly the Administrator is something to do with the Developer, as the Administartors stated that this person could stand as President as he was a representative on behalf of a collective ownership.

So, if we are in agreement about this President not being a legal appointment, how do we remove him and vote in a new President.

Is it as simple as I think it is, in that we just lodge an appeal at the Ayuntamiento?

Or do we just tell the Administrator that it's not a legal appointment, and therefore we need to re-elect a President? Or, if we cannot do that, does the only other person who stood for President, who had a decent amount of votes, become President?

And if the Administrators stills backs there previous statement that it is a legal appointment, what then?

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Me, the Mrs and Rosie too! But we'll never, ever forget our Tyler!

We support AAA Abandoned Animals Marbella - Do you?




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28 Oct 2008 5:16 PM by Roberto Star rating in Torremolinos. 4541 posts Send private message

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Was this the inaugral AGM of a newly formed community?
Who appointed the administrator,and when? If it was the developer, find out if they are related. If so, this could be detrimental, but before getting rid of them, think about how cooperative the developer may (or may not) be with a new administrator of your choice, should any problems with the Urb. arise in the near future. Sometimes, it may just be best to stick with the developer's choice, at least for the first couple of years.

Next, how did this "president" win the vote? Was it simply because the developer holds the majority vote, or did others also approve? How many of you are against this appointment? You would need 25% of the owners (or owners representing 25% of the total quotas) to convene an EGM, and then a majority vote of those present to overthrow the appointment. (Horizontal Law section 13:7 -

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.I

If you go down this route, and if you find that the current administrator is not with you, I suppose it would be wise to get some kind of independent witness to attend the proceedings (another administrator perhaps?) to legitimise them. 
You say there was only one other volunteer for the role. How keen is that person to take it on? Are they, for example, willing to act as your defacto leader in a people's revolt? 
How bad for the community would it be if you just accepted the current appointee? Presumably, he does not live in the urb., which would certainly not be the best scenario. But otherwise, is the appointment likely to be seriously detrimental to the community? Maybe the guy will do an OK job, a job which very few people are ever willing to take on.

Finally, I don't think the Ayuntamiento have any jurisdiction over communities, but there is another section of the Horizontal Law that may be relevant to your situation: (My underlining)

Section 18

1. The resolutions of the general assembly may be challenged in court, in accordance with the provisions of the general procedural law, in the following cases:

a) where such resolutions are contrary to the law or to the community statutes;

b) where they are seriously detrimental to the interests of the community and benefit one or several unit owners.

c) where they are seriously detrimental to some unit owner who has not the legal obligation to sustain such detriment or where they have been adopted in abuse of power.



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29 Oct 2008 9:58 AM by TechNoApe Star rating in Duquesa, Manilva. 1278 posts Send private message

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  This was the third AGM and guess what, the Administrators were appointed by the Promoter, which is why I stated before the AGM that we should change Administrators.

In fact they had a 'presupuesto' from another Administrator that was 30,000€ LESS per year, however it was 'felt' by the 'committee' that as the Administrator had done such a good job, that we should allow them to continue. WHAT!!! 30,000€ is 30,000€ and we could put that money towards other community improvements!

The President 'appeared' to have the majority vote, however it was not announced how many total votes he had, however the other person had 11 votes. I would say from the amount of people present, and proxy votes, the President had about an extra 10 or 15 votes.

The other volunteer seemed very 'switched on' and knew what was going on, indeed was able to quote the Horizontal Law act in an attempt to stop this President being allowed to stand, however he was very new to the Urb. and had very little support from those present, as the majority of those present are connected in some way with the Developer! The votes he had came by proxy from others who also want to get rid of the Developer, however as usual, voting apathy was apparent as there were less than 30 people present at the AGM out of 93 owners!!!

That's why he stepped forward even if only for a year, just so that we could get rid of the Developer and his money scheming ways. The current President is in the 'back pocket' of the Developer, as is the Administrators, and we want to get rid of them all and start running the community ourselves.

To give you an idea, our Administrator fees equate to almost 13€ per property, per month!

At the end of the day, this President is Illegal and we need to get rid of him and vote someone else in who is not in bed with the Developer!



_______________________

www.andalucianstyle.com

Me, the Mrs and Rosie too! But we'll never, ever forget our Tyler!

We support AAA Abandoned Animals Marbella - Do you?




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29 Oct 2008 5:24 PM by Roberto Star rating in Torremolinos. 4541 posts Send private message

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Well, it can be done, with enough guts, determination and support from sufficient other members. On A Mission proved it!
Best of luck. I don't envy you.

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Mark Twain

 

 

 




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29 Oct 2008 5:27 PM by mariadecastro Star rating in Algeciras (Cadiz). 9349 posts Send private message

Legal Questions? Speak to Maria Direct
Oh yes, you can do it. Ask " On a mission"

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22 Feb 2009 6:10 PM by vistaverde Star rating. 27 posts Send private message

Interesting item about ilegal presidents and abuse of position. We also have an edge-of-legality issue here.

We had one guy that was Pres. for seven years  (usual business of collecting open proxies and voting forn himself).

After a revolution he decided to leave quietly. To prevent the same thing happening again and warming to a suggestion from a Spanish who said that in her last community they introduced a two year limit - so we did.

Recently we had an AGM  where the first item was to change the House Rule so that the president, who had come to the end of their last year) could now serve for three years (if re-elected of course).

The second item on the agenda was the election of the president - the one who had come to the end of their two year session..

The meeting was long, loud and there was a complete collapse of control. The community lawyer resigned and stormed out.

Has anyone any thoughts on an item on the agenda being passed and then immediately applied to benefit someone that should have stood down under the conditions of the previous version of the House Rule. When does an item on the agenda that is given the thumbs up come into force.

Sounds confusing and a right shambles - it was!

Sad thing is that the two term limit was intrduced to stop the hogginh of the post. I'm not saying that the in-post pres was a dud or anythig but generallynour community is awash with rule bending, llegal building and other dangers to civilzed existence in the sun.

Thanks for reading - all views most welcome at Dodge City - Mijas.

ps - anyone know a good lawyer?





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23 Feb 2009 9:56 AM by jturner Star rating. 40 posts Send private message

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The dilemma facing your community was that you had a dictator in charge who was abusing the proxy votes he held. I have quoted this paragraph on another thread but readers may find it useful.

 

This is a direct quote from You and the law in Spain. by David Searl 'But this sort of open proxy can be dangerous if you do not fully trust the person exercising it and that person can vote against your best interests if he/she chooses. You can make a specific and detailed proxy, which authorizes its holder to cast your vote only in certain ways. That is, the proxy can declare that its holder must vote "yes" on items three and five of the meeting agenda and can vote "no" on items one and four and that he/she must abstain from voting on other issues. The secretary of the meeting will ask to see the proxy forms when he/she registers each members attendance at the meeting, so he will know this.'

 

The next problem to arise after the introduction specific proxies is that for example the person holding these votes can influence his friends to vote for him/her anyway, so this would in reality mean that the person holding a block of proxy votes influences the decisions of the community regardless of the consequences.

 

Your communities decision about the abuse of open proxies was to introduce the two year rule for the post of the president. I think in hindsight you might agree that this would be a rule that would be difficult to enforce. Especially when you have in place a President that is competent.

 

Perhaps your previous vote for the two year rule should have had a covenant that this statute should have been written into the deeds of the community and stamped by a notary. This of course can be changed by unanimous agreement, that is all the owners must vote one hundred percent agreement for change of a statute.

 

I suspect your community lawyer and board agreed that the two year rule for being president was already minuted and agreed by the community and recorded as such.

 

Your communities agenda of course has been designed by the board to negate the previous vote on the two year rule.

 

As always rules, even house rules can be varied by the majority of the owners by a legally constituted meeting (AGM.) So my opinion is this is done and dusted in favour of the current board.

 

Was nobody prepared to stand against the current president?

Quote:- “Generally our community is awash with rule bending, illegal building and other dangers to civilized existence in the sun.”

Proactive negativity regarding rules is a way of life in communities here in Spain. The rules are the work of the board. If the board is turning a blind eye to the abuse of Horizontal Property Law call a meeting on these issues and elect a new president. The new president must be prepared to enforce abuses of the community rules by all the means at his/her legal disposal.

Having said that my recommendation is do not become president. Because most presidents end up in Tombstone! Or in room 101!

 

Philip

 





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