Gibraltar Properties - Costa Del Sol Properties - Costa De La Luz Properties - Morocco Properties - Portugal Properties 27th November 2017 
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RIGHTS AND OBLIGATIONS

This article is part two of an extract from 'You & the Law in Spain', an essential guide to laws, rules and regulations for all those individuals actually or potentially resident in Spain. This book is packed with information on the rights and responsibilities of all those living in mainland Spain and the Islands. To obtain a copy, contact details are below:

YOU & THE LAW IN SPAIN published by Santana Books. For details contact Santana on:

Tel: 952 485 838
Fax: 952 485 367

www.santanabooks.com
sales@santanabooks.com

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As a member of the community of property owners, you have the right to attend the annual general meeting, and any other meetings of the community, along with the right to be properly informed in advance of the dates and the order of business of any meeting called. If you are not correctly informed, you can protest and even have the results of the meeting annulled by a court. At the meeting you have the right to voice your opinion, the right to vote, and to present motions for the vote of the other members. You have the right to be elected and to hold office in the community. You may be the president, the vice-president or the secretary. You may be charged with administrating the affairs of the community.

You have the right to see all of the documentation and records of the community. The administrator or other officers are legally bound to keep these records and accounts at the disposal of the members. If they refuse to show them to you, you can obtain a court order to see the documents. You have the right to hold and to vote proxies issued by other members who are absent from the meeting. This is common practice in communities where the foreign owners are absent much of the time. Most communities in fact have a standard Proxy Form on which an absent member can delegate his vote to another member.

If you feel that a decision voted by the majority of the community is illegal or contrary to the statutes, you, acting alone, can ask the local court to rule on the matter. If you feel that the decision is legal but seriously prejudicial to your own interests and you can unite 25% of the owners and shares, you can petition the court to have the decision annulled, or you can oblige the president to call an Extraordinary General Meeting. You will need skilled legal counsel for either of these actions.

You are obligated to pay the cuotas - community fees that have been properly voted by the members at the Annual General Meeting. If you do not pay, the community can claim the debt in court and even have your property sold at auction. You are obligated to abide by the statutes of the community. If these statutes require all owners to paint their properties white and forbid owners to keep dogs, then you must paint your property white and you may not keep a dog. If you violate the statutes, the community members can vote to ask the court to issue an injunction that will forbid you from entering your property for a period of up to two years. This seldom occurs but the threat is there and it has been carried out in a few isolated cases. Both the Law of Horizontal Property and the statutes of most communities make provision for such obligations as maintaining your property in good condition so that it does not cause damage to the other owners, and permitting workmen to enter your property when it is necessary for repairs on the building.

THE PRESIDENT

The only community officer required by law is the president. He must be elected from among the members of the community, and he can carry out all the administrative work if no other officers are elected or appointed. The president acts as the legal representative of the community in action. He signs contracts and cheques and can bring lawsuits in the name of the community when he is authorized by the vote of the general meeting. He himself can be sued by the community if the members feel his actions have prejudiced their interests. If the community is sued, perhaps by someone who fell through a badly-maintained balustrade, the president, acting through a lawyer, will be their representative in court. The president gives orders to the administrator and he will prepare the notices of general meetings, along with the order of business. He will see that the notices are sent out well in advance. He will oversee the preparation of the accounts of expenditures and income and he will prepare the budget for the coming year. He makes sure that the minutes of the meeting are carefully kept and notarized. He presides over the meeting and informs the absent members in writing of the decisions taken. If they do not register any protest within 30 days, their agreement to the decisions is assumed. The president, when acting as the sole officer of the community, will oversee the management of the common elements of the property, will hear the complaints of the community members, and has full responsibility for the operation of the community, subject only to the approval of the annual general meeting. The president is so important that the law says the community must never be without one. The usual term of office is one year, although the statutes may specify other time periods, but if the community does not act to elect a new president when the time is up, the old one continues in office until a new president is elected.

Many small communities where the president is the only officer find difficulty in persuading one of the members to take on this time-consuming responsibility. In many buildings, the flat owners take it in turn each year to be the president. Under the revised 1999 law, the president can even be paid for his services.

THE ADMINISTRATOR

Because so many details demand the attention of the person who runs a community, most communities choose to name a professional administrator for this job. The administrator is contracted to manage the services of the community and is paid a regular fee for this service. Although many communities choose to employ a licenced Adminstrador de Fincas, or professional property administrator, or a licenced tax consultant or accountant, the community administrator need not hold any official title. Many people think that the professional administrator is an elected officer of the community. This is not so. He is a hired professional, usually contracted for a period of one year. The community may vote to renew his contract, vary his payment, or name a new administrator at the annual general meeting. The president may terminate the services of the administrator at any time if he feels that the administrator is not carrying out the duties specified in his contract. This decision must be submitted to the general meeting for approval, but this can take place after the action.

Relations between communities and their professional administrators have caused many problems. The administrator's contract must be very carefully drafted to make sure that both parties know their rights and duties. The administrator's duties are the normal ones of seeing to the proper management of the common elements of the community. Unless otherwise specified in the statutes of a particular community, the horizontal law says that the administrator shall prepare the budget and present it to the meeting, maintain the building, inform the owners of his activities and carry out any other function conferred by the general meeting.

Many administrators carry out the work of the community effectively and rapidly, doing their best to keep all of the owners satisfied and well informed. They charge a reasonable fee for their services and they present the community members with clear accounts each year at the general meeting. These administrators are treasures. In other cases, members complain that the administrators do not carry out the work for which they are responsible, that they arrange community affairs to suit themselves rather than the members, and that their accounts are vague and confusing, which leads the members to worry about where the money has gone. These administrators should be replaced. Replacing the administrator, like electing the president, is an important step and will require the majority vote of the community members. This brings us to the Annual General Meeting.

ANNUAL GENERAL MEETING

The Annual General Meeting is the maximum authority of the community of property owners, who are required by law to meet at least once each year to elect a president, discuss issues affecting the community, to examine and approve the accounts of expenditures of the previous year and to decide upon the budget and the fees each member will pay for the coming year.

The book of minutes, the libro de actas, which records details of the meeting and voting, is an official legal document that can be used in Spanish court proceedings. It must be stamped as authentic by a notary or a judge. This book establishes the right of the community president in court to bring a lawsuit against a community member who has not paid his fees, the cuotas. It records the names of members who voted in favour of a measure, either in person or by proxy, and the names of those who voted against each measure. This becomes important when a minority of community members wish to bring a legal protest against the decision of the majority, claiming that their interests have been seriously damaged, even though the majority vote was otherwise quite in order. In a court case, the dissenting minority must bring action against the majority. So the minutes book, as a legal document, establishes the names of those who voted on either side. The book is evidence in court, and decisions made by the community are serious matters.

Before you attend your first meeting, you should try to meet the president and the administrator of your community, as well as other members, to get an idea of the problems facing the members. If you already have a motion that you want passed by community vote, you can begin to assemble the proxy votes of members who support your position and who will be absent from the meeting. This proxy can be a simple written authorization that enables you to cast the vote of the absentee. You must be notified at least 8 days in advance of the meeting's date, time and place. You should also receive a written agenda, the order of business to be transacted, though this is not strictly necessary. The members can bring up any new business they wish at the meeting. It need not be listed on the agenda. At the meeting, you will register your attendance, and any proxies you will vote, with the secretary or keeper of the minutes book.

The president will preside over the meeting. The first item will be the reading and voting to approve the minutes of the previous meeting. If the minutes do not meet with your approval, either because they are false or incomplete, you can vote against accepting them. Your protest will be registered in the book and can serve as evidence in court if you wish to make a claim. The accounts of the previous year's income and expenditures will then be presented for the members' approval. You should have received your copy of these accounts before the meeting. Sometimes they are perfectly clear and other times they are quite incomprehensible. Ask the president, administrator or treasurer to explain any points not clear to you.

Tempers can run high at community meetings. They often degenerate into multilingual shouting matches when not properly managed. At one meeting a woman became enraged when she felt she was not getting her fair chance to speak and she threw an ashtray at the table of the presiding officers. A heavy ashtray. Even in the best of circumstances, meetings tend to be longwinded, as different members insist on discussing minor details. One community voted unanimously to limit each member's speaking time to five minutes, and to limit each member to two speeches.

When it is time to vote, you will vote according to your cuota. This cuota, based on the size of your property, determines both your share of community fees and the weight of your vote. Usually, the majority of members is also the majority of the cuotas, but sometimes a few members with large properties can dominate the workings of a community. This can happen on an urbanisation where the developer still controls the votes of the unsold parcels of land and runs the community to suit himself. The votes of the members will be recorded in the minutes book and action will be taken accordingly. A new president will be elected by majority vote and the building will be painted or not, according to the majority decision. There is always the possibility of protest, remember, when a minority of members feel they have been pushed around by the majority.

If a decision requires a unanimous vote, such as a change in the statutes or a construction project that will alter the participation shares of the community members, this unanimity can be achieved by informing any absent members of the decision. If they do not respond negatively within one month the motion is considered as passed unanimously.

One recent amendment to the horizontal law provides that the installation of ramps and other facilities for the handicapped requires only a three-fifths majority, even when such an alteration of the building would normally need a unanimous vote. This does not exactly give the handicapped a free rein, but it does improve their negotiating position. The new law came from a court case in which one person in a building had blocked the installation of ramps. This was perfectly legal although not very nice, and the Spanish Congress voted, in July 1990, to amend the law.

Finally, the meeting will be adjourned, with some members pleased and others not pleased at all. This is truly democracy in action, with all its advantages and disadvantages. When people are unhappy with their community, they always refer to it as "they." The community is never "they." It is always "we".






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