Resort AGM

 We have a resort which has several communities.

Each community is independant and has their own AGM but community property owned by all the communities is managed through the resort AGM and by the resort president who is elected from the community presidents.

A dispute exists about the distribution of fees between the communities making up the resort.

Each community was allocated a cuota at the time the resort was built and this was used to calculate the fee distribution.

The result was that the fees to some of the communities was very high so a new system was imposed based on surface area.

This caused a lot of upset as it was simply imposed without a vote of the owners.

A vote was held last year at the RESORT AGM and 98% of the presidents voted for the surface area system.  The resolution was said to have been passed by a majority.

According to the law this resolution could not be implemented, although it was.

24.3

b) the adoption of resolutions for which the law prescribes qualified majorities shall require, in turn, a prior appropriate majority at the general assembly meeting of each one of the communities belonging to the master community;

This was covered in a previous post where someone asked if the majority of owners felt that the fees were unfair then they could be changed by a majority vote. The quote is below from Maria.

2.  If the system for quota feeing does not seem fair, it can be discussed in a Community of owner´s meeting, just majority will be needed for the change.

Good morning by the way!

_____________________

Maria L. de Castro, JD, MA Lawyer

Director

As you had 98% of the presidents vote to change at the first Resort AGM and then this was agreed by the owners in the mini communities this year, then that sounds perfectly legal.

Also you mention a lot of upset and yet 98% of the presidents voted for the change so, I guess most were not too upset. If it is fair now according to 98% of the presidents and it only needs a majority of owners to agree and if that was achieved in the votes in the mini communities this year, then it all sounds okay. How many presidents does 98% represent? If there are 100 then 98 were for and only 2 against. Why were the 2 so against all the others?

Also you say:

"It is all a big big mess as those running things do not have much of an idea of the law and they are trying to cover themselves as it looks like some of the owners will take the resort to court to sue the resort for the illegal fees they have been charged". 

Is this your view or just hearsay. You need to remember that it is not easy running a community and perhaps you all need to support your president to get the debtors paying up of which you seem to have some big ones. As 98% of the presidents seem to support the changes perhaps it is the 2% that need to accept the will of the majority and move on. Court battles are expensive and will only bring your resort into disrepute! As for the debtors the Spanish courts are full of them at the moment so its very slow to get a judgement but it will happen in the end.

Hope it all works out for you and all the other owners.

 Hi there suedoc

This doesn't answer the legal question and I really wonder about this answer.  I was hoping I'd get the solicitor to answer the question direct.  It would be nice if you could put the link to this answer.

Yes as I suspected the fees distribution can be changed at the community meeting and a majority of owners voting for it is what is needed for a change.

But this is not an issue of a single community, this is a resort of many communities.

The law as far as I can see is saying that all the communities in a resort must agree for a change to be applied to the whole resort.

So if any disagree, even just one, the resolution is defeated.

Individual communities can do as they wish but the law seems to be saying they can't force changes on other communities.

So as is the case I'm asking about, it is to do with resort fees, the way they are distributed from what the law says (by the cuota) unless every community agrees with this.

The resort has assumed a majority in the resort AGM is OK, but this is not what the law is saying as I can see.  You would have thought the administrator would have told the resort president what the law was, but we have had so many gaffs I wonder if some is not saying or someone else is not listening.

I appreciate the help but this is a very important question so I would like the solicitor to put my mind at ease (or not which is what I suspect will happen).

If the resort has got this wrong, those taking this to court will be able to use it to their advantage and this will surely make the resort look incompetent.

Well I am not a lawyer and certainly not an expert in Spanish community law although you seem to know quite a lot. I would still say the same as before though, if only 2% of the presidents representing 2% of the owners voted against this change, then I guess it must be for the benefit of most, if not all owners or at least deemed to be fair by the vast majority of owners at your resort. How many presidents do you have at the resort?

Whether a court would find in the favour of the 2% is I am sure debatable, as it will depend on legal arguments from both sides and, of course, the fact that the overwhelming majority of owners seem to be in favour of the change in the fees. Even if they did win such a case how unpopular would that decision be with the other 98% of owners, never mind the court costs!

So I hope the owners that are threatening legal action see the bigger picture and let your resort move on as a united community and do not drag you all through the courts for many years to come. Having a court case hanging over you would not a good advert for your resort at a time when it is difficult enough to sell property in Spain.

I wish you well with this situation as I am sure you would much rather spend your time enjoying the sun and your community than having to worry about a small minority of owners starting a court case.

Section 9. 

1. The Duties of unit owners are:.

e) to contribute, according to the assessment quota set forth in the master deed or to what may have been specially established, to the overall expenses for the appropriate maintenance of the building, its services, charges and any responsibilities that cannot be allocated individually.

Section 24

b) the owners of such buildings or of the units in which they are divided participate in an indivisible co-ownership of other immovable elements, roads, installations or facilities.

2. The private real estate developments referred to in the preceding subsection may–

a) form one community of property owners through any of the procedures provided for in section 5.2. In this case they shall be subject to the provisions of this Act, which shall be entirely applicable to them; or

b) form a master community comprising various communities of property owners. For this purpose, the master deed of the master community must be executed by the sole owner of the development or by all the presidents of the component communities, duly authorised by a majority resolution of their respective assemblies. The master deed shall include the description of the whole real estate development and of the common elements, roads, installations and facilities. It shall also contain the participation quota established for each one of the component communities. These shall be jointly liable for the expenses of the master community. The master deed and the statutes may be registered in the Land Registry.

 Hi Maria

Thanks for the reply.

I can see all of the presidents must comply with the master deeds for the resort.

I am still unsure about my question.

Where there is a vote to change the way the resort is run in some way, like change the fee distribution, it appears to say that each one of the mini communities must vote and a majority of the voting owners in each community must agree to the change.

So in other words ALL the mini communities must agree before anything can be done to make the change.

In the case of my resort a few communities voted against having this change but it was still said to have been passed by the majority.

It doesn't seem like the law allows for a majority decision in resort votes, it has to be unanimous and I wanted this confirmed or not. 

Unanimity shall only be required for the validity of those resolutions involving the approval or amendment of the rules contained in the master deed or in the community statutes.

This message was last edited by worried 2 on 21/04/2010.

 Dear Worried owner,

I am a president of one of the sub-communities at the resort you are obviously referring to and I not sure who has been giving you this information, but it sounds like one of the 11 members of the action group that are threatening this legal action (out of over 2500 owners) unless you are actually part of this group and are just pretending to be a worried owner!

As for the facts of this they are as follows:

1. This small group of owners centered around just 2 of the sub-communities have been threatening legal action for 2 years now and have employed various lawyers who in the end walk away and no action is taken. They are constantly looking for someone to support their case and so far are achieving very little if any support as the vast majority of owners understand the community fees are now fair to all owners and have voted accordingly in this years AGMs as indeed did all but 2 of the 100 community presidents last year.

2. The Cuotas set by the developer are not being ignored and are being used for all the direct expenses for the sub-communities such as the gardens for the townhouses and the villas and the lifts for the apartments. 

3. The resorts shared costs like security are being shared by all owners based on surface area as listed in everyone’s deeds. This is how it should be done as pointed out by the administrators having taken legal advice from a firm that specialises in community law. Section 5 of the HPA clearly states that "The basis for determining said quota shall be the usable area of each unit in relation to the building as a whole, its internal or external location, its situation and the reasonable foreseeable use of common elements and services".

So the community is following the HPA, has taken full legal advice and the vast majority of the 2600 owners are happy with this and have voted so at the last AGMs.

If you are truly a worried owner then help out with the community issues rather than post on open forums like this one. If you are actually one of the agitators for want of a better word, then please accept the will of the majority who fully support the administrators and the community fees we are all paying as they are fair to all and have been legally voted on at the AGMs of all the communities.

 Hi there Lib222

I see you say you are stating facts.

The administrator/ resort president has time and again said something was legal and then has doubled back. There was an issue of wristbands for the pools for example. This was said to be legally brought it, but then it was admitted it hadn't been.

The vote over the fees at the first AGM was put to the presidents without any consultation with the owners.  It was justified on the basis of case law that didn't apply to the fee distribution but cuota distribution and then the president had to admit the vote did not carry any legal authority as the owners had not been consulted.

There are more but we will be moving away from the point.  My point was the resort president has time and again been misinterpreting the law.  I think I'm being generous to say this as I suspect he knows the law which would have different implications altogether.

If you look at any website on Spanish communities it says fees are distributed according to the cuota set by the builder.  Not some figure set by presidents who lives in a villa and will benefit from this.

The cuota is set and is in the deeds.  This is not the surface area or number of bedrooms and Google map coordinate.  It is a clear percentage allocated by Polaris World when they built the resort.  It is recorded in the deeds and registered at the Land Registry.  In your point 3 you say the cuota is worked out on the basis of surface, yes it says that, it also says it is calculated on value, it also says it is calculated considering what I will call "amenity usage".  It also says this is all calculated by the builder and goes in the deeds.  It doesn't say it is calculated several years later by a small group of presidents and isn't recorded in the deeds but is still charged to owners.

So my question related to how it was voted in.  After a long history of legal misinterpretation I do not trust the resort authorities to even lie straight in bed, let alone be completely up front about what is correct or not.

As far as the group of agitators, I am aware of a group of owners but I'm unaware of how many solicitors have been employed or whether these solicitors have given up and walked away.  I very very much doubt you know either.

As far as I know it is legal for owners to change the fee distribution if they want to and a majority in a community vote for this.

However I have also read that if an owner does not want to pay their fees by the new system they have a right to have their fees calculated by cuota as in the deeds because this is what is in the Horizontal Property Act and the other owners cannot take this right away from them.

If this is true would this mean the communities which did not want to have the surface area or even single owners in a community demand they have their fees on this basis.

I heard this off a couple of websites and an administrator who told me.

This message was last edited by worried owner on 22/04/2010.

 I think all can see from your post that you are not who you say you are worried owner!!

You state:

"Not some figure set by presidents who lives in a villa and will benefit from this".

98% of presidents said yes to the surface area method of calculating the fees for the general resort after clear legal advice given to them at the resort AGM in 2009 by the resort administrator who runs a number of large urbanisations and has been doing so for 20 years. It was not some shady deal by a few presidents who live in a villa,  to quote your words (not all together I hope it must be a big villa). Of those who voted yes, 60 were apartment presidents, so hardly a villa presidents conspiracy as you seem to be trying to portray. 

All owners were given the chance to confirm this at the community AGMs this year which the vast majority did as they realise it makes sense and is fair to all owners of all property types.  That does not suit your argument, but it does not mean it is illegal. 

 Lib22

I came to this forum to ask a question.

The resort administrator is not a lawyer and takes orders from the resort president.

The charges for administration for 2009 were 8.81€ plus IVA per owner per month and this year the administrator proposed an increase to 9.84€ plus IVA per month per owner. Not sure if that is taking effect.

I am told that over 7€ a month is very high, considering the economies of scale, this charge is massive.  The administrator will say whatever the president wants him to.  The case law was not relevant to the situation of fees, it related to cuota and voting rights.  If you would like to quote the case law to show I am wrong I invite you to do so.

The fee distribution was introduced without any consultation with owners or presidents, as you well know.  It was over 6 months before it was voted on at the resort AGM, as you well know - and it took two years for it to come before owners, as you well know.

I had a simple question to ask and I have asked another.

If individual owners or subcommunities in a resort wish to have their fees calculated on the basis of the cuotas in their deeds are they entitled to instruct the administration to calculate them this way even if other owners and communities in the resort have voted for a different system?

I have been told this and read it in two separate places.  I would like to know if this is the case.

This message was last edited by worried owner on 22/04/2010.

Hey Collette and Sheila, are you website hopping?

 Well, worried owner,  if it is true, and you can opt out then I guess your community will need the following:

1. An inflatable paddling pool as I assume you will not be using the pools as you will not be paying for them. You will just need to agree who inflates it and changes the water.
2. A lawnmower for the owners in your community to use as you will not expect the gardeners to cut your lawns.
3. A hat with 'Security' on it to hand round so that each owner can take turns patrolling the area around your community as you will not be paying for security.
4. A new administrator as you will not be paying for the current one we all employ.
5. A fund to pay for a lawyer to take the developer to court over any outstanding build issues.
6. A watering can instead of the irrigation we all enjoy the use of to water the communal gardens around your block.
7. A tin of paint and some brushes to paint the outside of your block as you would not be part of the maintenance program.
8. And last but not least an out of order sign for the lifts when the maintenance company demand full payment to keep it working safely.

 Pathetic.

I happen to own a town house so I'm concerned when I see what potentially is a further problem for the resort because certain people could not sort out the root cause of the issues in the first place.

** EDITED - Personal names **

But it is someone who wished to ask some important questions.

What you do not seem to realise is if a large number of owners did elect to pay by the cuota, should I have this question answered here, it will be the head in the sand people who will be needing the paddling pool. 

Maria you have already given the answer

Section 9

1. The duties of unit owners are–

e) to contribute, according to the assessment quota set forth in the master deed or to what may have been specially established, to the overall expenses for the appropriate maintenance of the building, its services, charges and any responsibilities that cannot be allocated individually.

So the law is saying owners contributed according to the cuota OR what may have been specially established.  So an owner contributes one or the others - there is the option.

Hmmm - so what I read will have been right - now I am worried.

This message was last edited by worried owner on 23/04/2010.

This message was last edited by worried owner on 23/04/2010.

So who are the certain people, please tell us

Townhouse owner thats funny. Of course you are. Ohh was that a pig I just saw flying past my apartment balcony 

Pathetic!!!  Well I would have thought that was someone who tried to pretend to be someone else rather than being honest !!! Pretending to be a worried owner rather than the exact opposite, ie someone who just wants revenge on what they see as a personal vendetta against the apartment owners by the other property owners. It wasn't and 60 out of the 62 apartment community presidents know that and think you are both barking mad.

So please let the rest of us enjoy our community in peace.

 I have reported these comments as spam.

I have asked serious questions and you in your various aliases have specifically joined this forum to engage in the usual bully tactics a small group of individuals are renowned for at the resort.

Let me get this right, you are asking about the legality of community fees and saying that you are a townhouse owner, as a townhouse owner your fees were reduced so are you saying you are wishing to find out if it is legal so that you can start paying more and then to have to pay apartment owners money back because apartment owners fees were increased?  The mind boggles!

Why not take your concerns to the administrator who you pay for.

I might report your posts as you are turning our resort into a laughing stock, if you want to sue the community then do it, do not constantly knock our fantastic resort on other websites because you are too frightened to do it in public.

I have reported your post as spam because you are a web hopping antagonist intent on dragging the good name of our resort into the gutter