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16 Aug 2009 00:00 by arne56 Star rating in La Cañada and Uppsal.... 188 posts Send private message

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At our first AGM, the administrator proposed a first payment of €150 and then €40 per month, regardless of quota, in six months. No budget was set up but should be ready in half a year on an EGM. In the minutes it says "to the next general meeting". We had a EGM in June where the administrator claimed that it was all a missunderstanding and the fee was due to the next AGM and that budget could only be set up at an AGM.

I have blocked my account as I claim that there is no feed approved.I will probebly be on the list of deptors.

Who is right, me or the administrator?

Is a budget compulsury by law?

What should I do if I am on the deptors list? (I have paid up to the EGM)

 

 



This message was last edited by arne56 on 16/08/2009.

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17 Aug 2009 08:49 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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To impose a levy regardless quotas is against the law and may be challenged at court, but you must have satisfied all commonhold levies .

 

Section 17 provides

.

(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

(b) Where they are seriously damaging to the interests of the commonhold and benefit one or several owners.

(c) Where cause serious damage to an owner who has no legal obligation to sustain such detriment, or where they have been adopted in abuse of law.

 

(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. In order to challenge a resolution, an owner must have satisfied all commonhold levies or, alternatively, must have paid them into court before proceeding. This provision shall not apply to the challenging of resolutions relating to the alteration of owners’ allocations, as referred in section 9.

 

(3)  The action shall lapse three months after the adoption of the decision by the Committee or one year in the case of resolutions contrary to the Act or against the Articles. For owners not present at that meeting, this time limit shall begin to run from the date on which the notice has been received, in pursuance of section 9.

 

(4) Where a decision of the Owners’ Committee is challenged in court, its enforcement shall not be suspended, unless the judge, at the claimant’s request and having heard from  the commonhold association, resolves to suspend it  as a precautionary measure.

 

Regarding the budget section 16 (1) provides:

 

The meeting of the commonhold association shall be held at least once a year to approve the budget and the accounts

 

If you are up to date but still in debtors’ list you should bring your receipts at the meeting and show them to the administrator and president in order to update such list

 

 



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17 Aug 2009 21:59 by Roberto Star rating in Torremolinos. 3871 posts Send private message

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So, would it be correct to assume that if no budget has been set and agreed upon, the administrator cannot impose a fee? I have a similar situation to arne56; I own a property in a new build, I am aware of my quota (it's in the escritura after all) but the admin is asking for a fixed figure without producing any budget. How can I be expected to pay xxx % of a figure that has not yet been decided?



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17 Aug 2009 22:32 by arne56 Star rating in La Cañada and Uppsal.... 188 posts Send private message

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Thanks spanishsolicitor.

I will explain more about the fee decisions. According to AGM minutes the fee was agreed to the next meeting, which was the EGM in June. However the administrator claims that this was a mistake. The EGM minutes says:

“….. complained that new fees and budget were not approved during this meeting as in his opinion the minutes from the constitution meeting stated that they would be approved at the next meeting. The administrator replied that surely this must be a misunderstanding or mistake of translation, as in the Spanish minutes it clearly state in the next Annual General Meeting. Moreover, until now the community only has electricity expenses, and then it would be complicated to suppose what would be spent. Some owner’s presents at the meeting confirm what was being said by the administrator reminded the law; the budget is to voted once a

year as said in the constitution meeting”

 

The Spanish version from the AGM was never distributed.Our president has also confirmed in a letter to me, after talking to the administrator, that the minutes distributed is the right version of the AGM decision. So problem is: Which is the legal version?

So we have different opinions about the fee. What is the best thing to do? If I challenge the decisions in court (same fee for all regardless of quota and lack of decisions and budget)  it would probably cost me a lot more than the fee itself.

Morover we have a lot of community rules but none have been approved on any General Meeting. Do I have to follow them?



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18 Aug 2009 08:56 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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Roberto you have a wide knowledge of commonhold law in Spain, (more than some administrators) which is admirable bearing in mind the complexity of the Act.
 
On the one hand we have and administrator imposing levies that have not been transacted and passed by the Owner’ Committee. Thus, he is not acting within his own sphere of responsibility.
Section 14 (b) makes provision for the functions of the Owners’ Committee in financial matters
14’ the functions of the Owners’ Committee shall be:
(b) To approve the budget of foreseeable expenses and income and the corresponding accounts’.
 
In addition he is not following the proper procedure so the community won’t be entitled to claim fees in the future
CA Cantabria 05 Nov 2002 and CA Cordoba 6 Jun 2007 hold the impossibility to claim fees without the prior ordinary resolution of the OC
 
On the other hand we have a community running without budget and without fair expenses distribution.
Regarding the minutes I would like to see the Spanish version in order to determine if the administrator is lying. (You are entitled to have the Spanish version too. which is to be the only legal one at court)
To avoid these problems communities should produce Spanish English minutes in the same document, like when you sign Spanish - English POA
Regardless minutes do you remember any kind of vote or something like that at the AGM?
What was the Agenda of the AGM notice?
 
The best thing to do is having a meeting with the president and the administrator (they will se reason) and after call for a meeting in which the budget, the expenses distribution and the other rules should be passed by the OC. By now, forget to go to Court
How was the administrator appointed? He is not fulfilling his obligations under section 20 of the Act
 
It shall be the function of the administrator:
(b) To prepare the budget of predictable expenses with sufficient anticipation and to submit it to the Owners’ Committee, proposing measures to cover the expenses.
 
Be careful with administrators linked with developers. Are there any unsold units in your community?
 


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18 Aug 2009 20:11 by Roberto Star rating in Torremolinos. 3871 posts Send private message

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Thanks for the compliment, but all I did was read the Horizontal Law and apply a dash of common sense - a commodity sadly in short supply these days. What does an administrator do to get the title?

In my particular case, there was a first agm, of which I received notification after the event (!!), but apparently no budget was discussed at this meeting. There has been a subsequent egm, at which apparently the colour of toldos was discussed (!!!!), and neither meetings were followed by any minutes. I don't even know who the president is. All I know is how much the admin wants off me. I'm inclined to ignore their request until something more concrete appears such as minutes or budgets. My property is actually only a trastero, and the amount in question is small - but there's a principle involved.



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18 Aug 2009 21:08 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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Where the administrator is not an owner, the Act sets out the requirement to have an ‘adequate professional qualification   and legally licensed’ (it is referring to a special profession known as estate manager or administrator regulated in the Decree 693/1968.)  It is not clear whether administrators have to belong to the official association bar in order to act as estate managers. Two different approaches haven been held; the first one is held by those courts who don’t consider necessary that administrators should be members of their professional association , the second one claim that the Act is clear when it is demanding ‘legally licensed’, therefore administrators are required to be licensed .
If no owner objects the appointment of an unlicensed administrator at the meeting it will be very difficult to win a case in court in which the appointment is overturned. Anyway due to the slowness of the Spanish justice, the ruling will enforce after the term of office (one year)
 
Where the office of administrator is held separately from the president’s office, either an owner (without being legally licensed) or a non-owner may hold the office
 
 Did you buy only a trastero in a community? Have you got the deeds?
Usually trasteros are accessory parts of a unit which are physically separated from the principal (house)
 


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18 Aug 2009 23:15 by Roberto Star rating in Torremolinos. 3871 posts Send private message

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I bought just the trastero, off-plan. I have the escritura, it has it's own ref. catastral, I have just received the first IBI bill etc.  In this, and many newly built apartment blocks, there are many more garage spaces and trasteros than apartments; clearly the promotor always intended to sell them separately. As a matter of fact, there are still plenty for sale. No surprise!

A few years ago I bought a property in a community where each apartment has it's corresponding trastero, which is indivisable from the principal, as you call it. In other words, the trastero did not have it's own ref. catastral or deed. I didn't notice (whoops!) when I bought it, but when I sold a couple of years later, the buyer's lawyer got very agitated about the fact that the trastero was not mentioned anywhere on the escritura. We had to dig around to obtain a copy of the original master deed, which confirmed details of the inseperable trastero.

Bit off topic, but maybe interesting for others to know about?



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18 Aug 2009 23:57 by arne56 Star rating in La Cañada and Uppsal.... 188 posts Send private message

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Thanks again

First I am a little confused. In my translation of the HPA (by CASTILLO TRADUCTORES) section 14 talks about “general assembly”. I assume this is what you mean by “Owners committee” (We also have a “Community committee” which is the president, vice president and two owners of which I am one)

14b says that the General meeting shall approve budget. I understand that this means that there must by law be a budget.

The rest of your questions are best answered by telling the story from the beginning.

We are two communities in one urb. CI and CII. CI was formed by the builder Febr 2008 who also appointed an administrator. They sacked the administrator in the spring and hired another from the builders list. We in CII had an informal meeting in June 2008 and agreed on choosing our own administrator. During the summer when we were in Sweden, a lot of activities, I believe was started by the president in CI. When we got back a group of owners have decided to choose the same administrator as CI and had also appointed a president candidate.

The first AGM in Nov 2008 was led by the new administrator as we started by sacking the one appointed by the builder. When we got to the point of economics the administrator claimed that no budget could be set up as he did not know what the cost should be and had not got the master deed. Different people got different view of what was decided. My impression was that a budget should be set up in six months at an EGM. The fee was set to a first payment of €150 and then €40 per month for everyone first six months. The value of the plots range from €160.000 to about €400.000.

I could not attend to the EGM in June 2009 but asked the administrator and the president to put budget on the agenda which they refused. They also refused to put my three other proposals on the agenda and said that the reason for the EGM was to approve change of some properties. Is that legal? Note that we have not approved any community rules.

I will try to get the Spanish version of the AGM and EGM when we are back in Spain in September. In the EGM minutes I fund a line:

“* The Spanish minutes state “Asamblea General Ordinaria” which means “Annual General Meeting”.

The builder still owns some houses but had not played any fee at the date of the meeting. In spite of that he was not on the debtors list not in the call neither in the minutes. Administrator claimed that they got a letter from the builder where they promise to pay later!!! This is not in the minutes.

One more questions:

Is it legal to publish the list of debtors with names and address on Internet?



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19 Aug 2009 10:02 by mariadecastro Star rating in Algeciras (Cadiz). 8578 posts Send private message

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An answer for arne56:

Is it legal to publish the list of debtors with names and address on Internet? It is legal just if the list is published in a private space that just owners can access. If it is made open public, it is not legal as undermining your intimacy.
 
 


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19 Aug 2009 10:08 by spanishsolicitor Star rating in Murcia. 140 posts Send private message

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First I am a little confused. In my translation of the HPA (by CASTILLO TRADUCTORES) section 14 talks about “general assembly”. I assume this is what you mean by “Owners committee” Yes it is the same body
 
That HPA translation (version Castillo Traductores) contains some mistakes because the author is not a lawyer. I pm you a more accurate translation
 
Section 13 provides for the governing bodies of a community
a) The Owners’ Committee.
b) The president and, where applicable, the vice-president.
c) The secretary.
d) The administrator.
 
The Owners’ Committee is another body of the community formed by all the owners who attend a meeting. Its functions are provided by section 14
It is the supreme instance of the community. The ultimate control of the affairs of the commonhold is through the commonholders in the meetings.
 
(We also have a “Community committee” which is the president, vice president and two owners of which I am one)
That 'Community committe is not provided by the Act thus, it has no legal functions
 
14b says that the General meeting shall approve budget. I understand that this means that there must by law be a budget.
 
Exactly, it is a legal requirement. Lack of budget passed by the OC could means unenforceability of the owners’ obligation to contribute
 
The rest of your questions are best answered by telling the story from the beginning.
 
We are two communities in one urb. CI and CII.
Section 24 of the Act provides for the creation of an association of communities. For this purpose, the  commonhold community statement (the title or the ‘escritura de declaracion de obra nueva y propiedad horizontal) must be executed by the developer or by all the presidents of the component commonholds, duly authorised by majority vote of their respective Owners’ Committee.
The commonhold community statement shall include the description of the whole development and of the common parts, roads, installations and facilities. It shall also contain the percentage established for each one of the component communities. These shall be jointly liable for the general expenses of the association. The commonhold community statement CCS and the Articles of the association may be registered at the Land Registry.
Have you got an official copy duly translated of your CCS updated from the Land Registry? Otherwise you are blind in this issue. It is like when you buy a kitchen in IKEA and after a good fika you try to assemble it without instruction manual
 
 
They sacked the administrator in the spring and hired another from the builders list. We in CII had an informal meeting in June 2008 and agreed on choosing our own administrator
 
The administrator must be appointed by the OC by ordinary resolution in a meeting duly convened
During the summer when we were in Sweden, a lot of activities, I believe was started by the president in CI. When we got back a group of owners have decided to choose the same administrator as CI and had also appointed a president candidate.
 
 
The first AGM in Nov 2008 was led by the new administrator as we started by sacking the one appointed by the builder. When we got to the point of economics the administrator claimed that no budget could be set up as he did not know what the cost should be (it is not an excuse) and had not got the master deed. (It is compulsory to register the Master Deed or title by the developer otherwise it is impossible to sell each unit) The fee was set to a first payment of €150 and then €40 per month for everyone first six months. The value of the plots range from €160.000 to about €400.000. Unfair distribution not according with the percentage established in the title for each unit. It is funny he does not know what the expenses of the community are but he does know to fix the monthly payments
I could not attend to the EGM in June 2009 but asked the administrator and the president to put budget on the agenda which they refused. They also refused to put my three other proposals on the agenda and said that the reason for the EGM was to approve change of some properties. Is that legal?
 
Section 16 (2) provides that any owner may request the Owners’ committee to examine and resolve any matter whatsoever which concerns the commonhold. For this purpose a request in writing should be sent to the president setting out clearly the items requested to be dealt with. The president shall then include them in the agenda of the following meeting.
 
 
Note that we have not approved any community rules.
I will try to get the Spanish version of the AGM and EGM when we are back in Spain in September. In the EGM minutes I fund a line:
“* The Spanish minutes state “Asamblea General Ordinaria” which means “Annual General Meeting”.
 
 
The builder still owns some houses but had not played any fee at the date of the meeting. In spite of that he was not on the debtors list not in the call neither in the minutes.  Administrator claimed that they got a letter from the builder where they promise to pay later!!! (I bet you one big fika that the developer is not going to pay anything until the Final Judgement) This is not in the minutes. (The administrator is clearly linked to the developer or he couldn’t care less)
One more questions:
Is it legal to publish the list of debtors with names and address on Internet?
It is illegal to publish such list if any non-owner could access it. I mean, it has to be protected by password or any other method
 
 

 

 

 



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