New Member desperately in need of help!!

Hello everyone!

If I were you, I would explain to the President that unless your tenant can use the pool, he/she will cancel the tenancy and then you will not be able to pay the 1000 euros agreed.   Some urbanisations empty their pools at the end of the season - are you sure it will be useable in any case?

You will need to understand the legal papers you have been sent - this is very important.  Can you not find a local accredited translator to translate them for you?

 I'm not 100% certain of this, but:

1) I don't think they can legally prevent you (or your tenant) from using any of the community installations, even if you have an outstanding debt.

2) The legal proceedings against you will probably take so long, that by the time it comes to court you may have paid off your debt - in which case the proceedings will come to nothing anyway. Even if you've only paid off part of the debt, the community may have to file a new claim if the debt is now a different amount. Personally, I think I would just go ahead with the plan to pay it off as soon as you can (and probably confirm to the community this intention in writing again) since this is what the adminsitrator has effectively suggested. I think the community will just be glad to get the debt paid off.

Maybe you can find a gestor or lawyer who would be willing to look at the papers you've received, and briefly discuss your situation, for no initial charge. Obviously, if based on their opinion of the case you decide to retain their services, they would then have to charge you, but an initial consultation may be available for free.

Hi. I am a President of a community (A hands on President !).

If you came to me with the offer you describe, I would not hesitate to agree to your proposal. In these difficult times you have to give debtors with good intentions every opportunity to clear their debts to the community.   I'm amazed your president will not agree to your offer.

Try speaking with your administrators, they cannot overrule the President but they can advise him/her with some common sense.

The community cannot stop anybody (debtors) using the facilities (pool) of your urbanisation.

I am hazarding a guess here as I don't know how your community/administrator applies the interest to your debt, but I would bet money that when (if) your case goes to court, and that may be a long time, especially in the Malaga province, your community would not be able to claim the interest on the debt, my reasoning needs more explanation but most administrators do not apply charges in the correct way in order for a court to include them in the debt,This is based on my own knowledge and experience as a president dealing with debtors and debt.

If the community gets you to court and wins they will then be able to place a embargo on your property but you can still be paying of your debt and discharge the embargo (which you must do or it will stay there even if you have paid the debt) when you have fully cleared the debt.

My final piece of advice is not to worry, common sense will prevail, take your "long term let" and start to pay of the debt by going to the administrators office and paying as much as you can (make sure you get a signed receipt), no court would offer a conviction under those circumstances but if you do end up in court go in with an abagado (solicitor) to plead your case, you will win hands down.

Finally finally, in your negotiations with your President/administrator stay calm, keep your cool, keep explaining your intentions (calmly !) do not rant at them you will just get their back-up and you will come across as rude and arrogant, after all you are in the wrong.

I have to say I hate Presidents that are dictatorial and do not listen to reasoned arguments (and I have met a few). As a President you are "custodian" of your urbanisation on behalf of your owners, not bloody Hitler !!

Best of luck

Thanks everyone for your response.  I too am surprised that they wouldn't accept my offer.  When I went to sort out my IBI and Basura debt they were so pleasant and helpful, telling me not to worry, and arranged for me to pay the debt over 18 months.

I too didn't think that they could prevent me or my tenants from using the pool but I thought I had read somewhere that there has been a change in the law recently and they can now do this.  It doesn't make sense to me because it prevents debtors from renting out their houses to discharge the debt.  If you are living in the house all the time you would probably avoid the pool anyway out of embarrassment and go to the beach instead and houses that are empty where the owners live abroad wouldn't be bothered about using the pool.  So it seems to be aimed at people who rent their houses out.  This particular President has a bee in his bonnet about the holiday makers who rent my house but none of them have ever caused a problem, being mainly families, all very nice people.  He has often been extremely rude to them for no justifiable reason.  I feel that I have played into his hands somewhat! 

Do you think I can separate the debt into different categories as I described, apply the credit to just the community fees and ask for my payments to be credited against the community fee debt first rather than the debt as a whole?  That way my community fee debt would be discharged first.

Make sure your payments are credited to the oldest debt first.

I would be cheeky and ask if the interest charges could be negotiated due to your difficult circumstances and your desire to pay as much as you can, rather than just ignoring the debt, you might be able to negotiate it down a bit, although with your current President I doubt it, but worth a try.

One young family came to our AGM and asked the same question, after a passioned plea from the floor.                                                  All the owners thought it was a brave thing to do in front of other owners, and then voted to discharge the interest on the outstanding debt. Nothing the President could do about that, although you will fare better with an "English" community, the Spanish are a bit less forgiving, but worth a try.

Don't forget they cannot got to court for this years arrears until after your AGM and the owners agreement, which all Presidents have to aquire.

I'm sorry to hear of your problems, as someone else has said, understanding communications in Spanish is ESSENTIAL. Try putting a note on your supermarket notice board asking for help, believe it or not many people do actually understand both English & Spanish.

Roberto has commented on the threat to stop your tenants using the pool. As he says IT'S NOT LEGAL - that comes from my brother in law who has been a legally qualified administrator for 30 years (miembro del Colegio de Administadores de Fincas).

If the administrators have not pointed that out to the president then THEY are either not very knowledgeable or are colluding with the president to con you. I have known this happen before, "don't disagree with the president or he may find another administrator etc. etc."

You really shouldn't worry too much but never delay in answering letters you receive. You would do well to state your proposal to pay off your debt in writing, in Spanish and send it to the administrators by registered post (certificado) with acknowledgement of receipt (acuse de recibo). Don't lose your copy of the proposal and don't lose the receipt, if you should finish up in court they will be worth their weight in gold. This will let the administrators know that you are not a dumb Brit. Better still you could send your proposal by BUROFAX but that would cost you about 25€ - the advantage is that the post office would give you a certified copy of your letter to the administrators. Good luck.

 Thanks CostaBlade.   I might try that!  The problem is that only 3 or 4 people ever go to the Community meetings as they always hold them in March when there is hardly anyone there.  The few people that go always have permission to vote on behalf of some of the absent owners.  I suppose I could try canvassing some of the owners that I know.

I'm glad that you said the credit can be applied to the oldest debt first, that is what I was hoping.  Do you think I can also apply the credit left after my payment in October 11 and the payment in October 12 to just the community fee debt?  Also do you know what the situation is with regard to the extra charge that they levied?  This was done to keep them afloat and after they managed to get the largest debt in the community cleared it has now ceased.  I wondered at the time if it was legal and was surprised that it wasn't treated as a loan to the community to be refunded at a later date.  Apparently no-one gets it back.

You asked earlier about the interest charges.  Previously it was applied to the total debt, at 2%, then that was increased to 4%, I think it was applied every 6 months.  Now it is a 10% charge on the monthly fee, charged a month after the due date if the fee remains unpaid.  The monthly fee is 274.68 and if it is not paid there is an additional charge of 27.47.

I really appreciate you taking the time to respond to me.  Thank you.

 Thank you ehw.  The charge that I have listed of 15.20 was their charges to send me a BUROFAX, that is the itemisation in my account.  Please can you explain to me what it is and can I send one from England?  That is where I live.  \

The administrators correspond with me in English so would it be absolutely necessary to get it translated?  My daughter speaks fluent Spanish but I'm not sure that it is good enough to translate a document.  I would be worried that I could be misunderstood and it would come back to bite me.

Hi Kelly,

The BUROFAX is a form of serving a document on someone in a way that a judge will accept. It not only verifies receipt of the document but also confirms what the document says. It's important that documents about this matter are written in Spanish because this is Spain. I'm not being facetious, a court is unlikely to accept anything that is not written in Spanish.

I haven't lived in the UK for 30 years so I'm not sure if the Burofax exists there, I would think it unlikely but maybe someone else reading this may know better than me.

It is absolutely essential that anything even vaguely "official" should be written in Spanish otherwise it's likely to be rejected and, even worse, is that translations, where the original and the translation are together, must be done by a qualified official translator which is expensive. This doesn't apply in this case because if your daughter wrote your proposal in Spanish it wouldn't be a translation, it would be an original Spanish document. Obviously you wouldn't send the English original.

Do you not know anyone in Spain that you could send the document to so that they could then send it on as a Burofax?

There is one other thing that you should beware of. EU law now allows communities in Spain to pursue debts in the country of residence of the debtor. If this happens it greatly speeds up the legal process which would take place in a UK County Court.

I couldn't say if this is better or worse for you but if it did happen you would certainly be able to put your proposal to a judge in your own language. Furthermore, no community can pursue debts in court until a general meeting of the Community gives the President and The Administrator authority to do so by majority vote. Before that can happen the owners have to be provided with a list of debtors and the amounts they owe. It is rare for owners to refuse to give permission to go to court but they may do so where a debtor is obviously making serious efforts to pay the debt. Your problem lies in making that known to the owners. Once the meeting has taken place you have the right to receive a copy of the minutes where the results of any vote would be recorded.

My feeling is that a great deal of bluff is involved in this case but, of course, I may be totally wrong. If you have any more questions I'll willingly answer them as best I can. I'm not a lawyer but I have spent years translating the minutes of community meetings, consequently I know how things work. I'm NOT an official translator.

.... I keep on thinking of more things. If the Community send you a Burofax you do not have to accept it. It would be sent to your address in Spain so you would need to take care that no one accepted it. Normally what happens depends on how the postal service works where your property is. Where I live a notification is delivered by the Post Office to the effect that there is a Burofax waiting for me at the post office. If that happens it may be best to ignore it.

This message was last edited by ehw on 17/05/2013.

Hello Kelly,

I've just noticed your comment about the extra charge levied on owners by your Community. This is a DERRAMA, it's legal but it must be for a SPECIFIC purpose, i.e. painting the exterior of the dwellings etc. It has to be approved by the AGM EVERY YEAR, it cannot just continue year in and year out and it cannot be just for general running costs.

If the community is short of money the proper way to correct the situation is not with a derrama but with an increase in the community fees (la cuota). This does of course have to be approved at an AGM.

In cases where speed is of the essence an Extraordinary General Meeting can be called but not just at the whim of the president as it costs serious money. It requires the support of a percentage (can't remember the figure) of the owners.

i can understand the president not wanting to cancel a legal action until he has seen some hard cash and in many cases promises are never kept.In yours though it looks like there has always been an intent to pay. depending what court it is, they can take quite a time and you will probably be straight by then.

Nick

For Kelly,

I have an unfortunate habit of making comments and then thinking about them afterwards.

In the case of the derrama what I've said is not strictly correct. Each demand for additional money on top of the community fee as it appears in the budget must be voted on at a general meeting, annual or extraordinary. It can only be voted on once. If the need for more money arises again then again that also has to be voted on at a general meeting. There is no way of "extending" the derrama, it's essentially a one-off demand to meet an essential need for something that's not in the budget.

The exception to the above is if an "emergency" occurs. If money were suddenly needed to repair a massive water leak for instance the president can demand a "derrama" (one-off extra payment) for that before holding a general meeting.

No way is the derrama a loan to the community but a well run community has the means to return the money to owners by reducing future community fees (cuotas).

It's certainly not unusual for a dictatorial president and his administrators to come unstuck and when he does he may well find himself having to dig into his own pocket to put matters right. The president is where the buck stops so he HAS to accept responsibility for his actions. I don't know where you are but on the Costa del Sol the newspaper Sur In English (an offshoot of the Diario Sur) offers free advice from a lawyer about almost anything you can imagine. It's a good way of moving forward when you're not able to communicate effectively in Spanish, at least you'll be informed whether or not the president is exceeding his powers.

 Hi Semo

What is this Public Bulletin 20-11-2012 all about. Does it relate to the Horizontal Law Act. Where can I read up about it as we have 128 Debtors on Urbanization.

Many Thanks

Regards

Hi,

I really don't know but i am also aware of another complex doing the same.  Our administrators are http://www.apluslaw.es/ i'm sure they would be able to explain this.  I'm just happy that it is happening as i find it very annoying that debtors can rent out and not pay their community charges and still avail of the facilities.  However i do not agree with the way in which the OP has been treated. 

 @ehw

En reply to sedo, 22 May.

The fact that this was agreed in an AGM does not make it legal.

It is a VERY common practice fpr Presidents of Comunidades de Propietarios to decide to take punitive action against non-payers and, as you say, it is very frustrating that tenants of non-payers have the use of the facilities but that does not alter the fact that (as far as I know), it is illegal. The only measure than can be taken is that of depriving the non-paying owner of the right to vote at a general meeting. I will investigate with my brother-in-law if the law has been changed BUT I looked at the Boletín Oficial del Estado for the 20th Nov. 2012 and I see nothing relating to Communities of owners or the law of horizontal property.

http://www.boe.es/boe/dias/2012/11/20/index.php?s=c

In your post you referred to the "Public Bulletin". There is no such thing, there is the Boletín Oficial del Estado which is issued by central government and each regional government has it's own Official Bulletin. Neither are known as a Public Bulletin.

I would expect any amendment to the Ley de la Propieded Horizontal to be in the Boletín Oficial del Estado as the law has nationwide coverage.

As I've said above I will ask my brother-in-law about this. In the meantime could you perhaps check which bulletin it is where this supposed change of law has been published?

Kelly,

I've sent you a private message.

@semo,

Sorry I've called you sedo in my previous post.

Another thing has ocurred to me. You mention that the statutes of the community have been changed in order to put the restrictions on non-payers into effect. It is far from easy to change the statutes. In some cases it requires 100% agreement of every single owner (which makes it impossible in reality) or it requires the approval of a high percentage of owners which is not necessarily easy to obtain when owners do not attend meetings and do not give a proxy to someone who does attend. If I were opposed to the change because it affected me I would challenge the legality of the change to the statutes. Naturally YOU wouldn't want to do that as you agree with the change.

This is yet another thing that I'll query with my long suffering brother.in.law.