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28 May 2013 9:28 AM by semo Star rating in Ireland. 84 posts Send private message

 

I was not at the AGM i am only copying items from the minutes.  It does seem strange however that other complexes - not with the same administrators are doing the same.





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28 May 2013 11:06 AM by noddy Star rating. 150 posts Send private message

changing/adding new statutes does require 100% of the ELIGIBLE voters, please note debtors are not entitled to vote.

However i dont think restricting services is a 'statute' matter its common horizontal law i think however they should be restricted as every community has some people scrounging letting others pay.

on our community we restrict access to through the garage only as 'we have to provide access', there is nothing written down to specify whicgh access.

Nick





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28 May 2013 11:14 AM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

 Kelly:

Did you see the email I sent to you?

Maria



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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28 May 2013 1:10 PM by semo Star rating in Ireland. 84 posts Send private message

This is the extract from the AGM Minutes  

The Administrator then informed that pursuant to the horizontal Property Act, owner are entitled to

object to paying extraordinary contributions for services considered non essential, on condition that

they do not use said services. On the basis of the same principle, and given the unfair situation

caused by owners who fail to pay their fees, but continue to use very costly services, such as pool

maintenance, paddle tennis courts, WiFi and in other communities gymnasiums, spas, etc., specific

instructions for all Colleges of Registrars were published in the Official State Gazette regarding the

procedure to follow if Communities of Property Owners wished to include said exclusion in their

Statutes and then register the modification. Thus a proposal was made to include the following rule

in the Community’s Statutes:

 

 

have not paid their Community fees, both ordinary and extraordinary. This restriction will be applied

to owners of dwellings and to all occupants thereof (guests, tenants, family members, etc.).”

“NON ESSENTIAL SERVICES are those that do not hinder the habitability or obstruct access to

private elements: use and enjoyment of closed areas (pool, pool terrace and lounge areas, library,

tennis/paddle courts, etc.), community Wi-Fi or other similar services, as approved by the General

Meeting that are maintained and paid for by the economic contributions of owners.”

“For the purpose of the foregoing, in order to be considered a debtor, the latter must have been

asked to pay the outstanding balance by the Administration or the President by means of a reliable

notification. In the event said notification is not possible, Section 9 of the Horizontal Property Act

shall be applied”.

 

A vote was then taken to approve modification of the Statutes as proposed

“The Community reserves the right to deny access to NON ESSENTIAL SERVICES to owners who

9) Agreement to modify the Community Statutes in accordance with the new

interpretation of the Horizontal Property Act published in the BOE [official state

gazette] on the 20th of November 2012 regarding restricting the use of nonessential

Community facilities by debtor owners





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28 May 2013 10:47 PM by ehw Star rating in Western end of the C.... 59 posts Send private message

@semo,

Thanks for the minutes of the AGM but the mystery only deepens. I now have a copy of the BOLETÍN OFICIAL DEL ESTADO dated the 20th of November 2012 as a .pdf file on my computer. I have searched it for every word that I can think of that may be relevant and have found nothing. It makes no mention of communities of owners, law of horizontal property, community administrators, registrars, debtors, restrictions, facilities etc etc. not a single word.

I have still not had an opportunity to speak to my brother-in-law about this but I have spoken to 2 adminstrators that I am acquainted with and they know nothing of any change that would permit this sort of action being taken against debtors. I have also spoken to the presidents of 4 different communities and they too are not aware of any changes.

My personal point of view is that the affair has a rather bad smell attached to it.

Having said that, by nature I'm stubborn so I shall be sticking with this for a while longer. Hopefully, tomorrow I'll get to speak to my brother-in-law.

 



_______________________
I do not object to folk who want to talk about Brexit, this is a free world



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28 May 2013 11:37 PM by lobin Star rating. 256 posts Send private message

For ehw

http://www.boe.es/boe/dias/2012/11/20/pdfs/BOE-A-2012-14272.pdf

This is the resolution of the General Direction of Registrars and Notaries published on Nov 12 2012 regarding the use of non-essential common properties by owners in arrears of communities' fees that is quoted in the Minutes by Semo



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29 May 2013 9:18 AM by semo Star rating in Ireland. 84 posts Send private message

Thanks Lobin i have posted the English translation that has plenty of reference to communities and horizontal law.  I have also asked the administrators for further info - if received i will post.

GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80637
III. OTHER PROVISIONS
MINISTRY OF JUSTICE
14272
Resolution of October 23, 2012, the Directorate General of Registries and Notaries, in the appeal against the rating of the property registrar of Mazarrón, by suspending the registration of a statutory amendment writing community owners.
In the appeal filed by Mrs. L. L. T. on behalf of the Owners Residential 4 P. qualification against Property Registrar of Mazarrón, Cotillas Eduardo Sanchez, by suspending the registration of a statutory amendment deed ownership of property.
Acts
I
By deed authorized by the Notary of Puerto de Mazarrón, Don Alejandro Fernández Toro, dated April 23, 2012, under number 234 of his protocol of the year, was given by the representation of the Owners Residential 4 P . an elevation public agreements resulting from the same act that is incorporated into the matrix, the sixth point of such agreements is a statutory modification with the inclusion of a new Article tenth of the legal regime of the horizontal division of the community . This new section shall read as follows: "The owners make no contribution or are in arrears in paying their community fees, regular or special, shall be denied access to the community pool and tennis courts." Agreement was approved unanimously by those present and sent the minutes of the absent reliably, warning that without negative response occur within the statutory period, would be empowered to grant President of the deed to the registration and processing registration.
II
The above writing was filed in the Registry of Property of Mazarrón on April 23, 2012, and suspended the rating for lack of evidence of payment of the tax; occurs again on paper, after the accreditation of payment tax, on May 4, and was the subject of negative rating May 22 that reads as follows in pertinent part: "Qualified licensed notary public document on paper in Puerto de Mazarrón, before the notary Don Alejandro Fernández Toro , on April 23, 2012, protocol number 234, presented under the seat 64 Journal 1135, after examining the records of the Register, the Register of Deeds undersigned, to this date requested registration suspended based on / the Next / s facts / s rationale / s of law: Facts: 1. ° In the Legal System Horizontal Property owners of independent departments that comprise as minimum content of rights, it is for joint ownership with others owners of flats or premises of the common elements, and therefore the use and enjoyment thereof. Therefore, the statutory provision by which, for non-payment of community fees is ordinary or extraordinary blocks access and therefore the use of the common elements is contrary to the peremptory norm that determines the minimum content of the rights of holders and local stories. Note, that the consequences of non-payment of such fees as are prescribed by law that sets a particularly agile process to collect on judgments of them, the condition of private elements to the cost of community current and annuity
CVE: BOE-A-2012-14272
GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80638
previous suspension of voting rights in the community meetings held, but at no time contemplated by such defaults limit the use of the common elements and the less of the proprietary. So, being the statutory provision whose registration is to contrary to mandatory rules, under the Horizontal Property Act itself by the delimitation of the minimum content of the rights of the holders of the separate departments, it is not possible to practice the registration requested. To that / is made apply the following grounds: 1. ° Articles 3, especially the letter b), 5, 9 first e), 18, 21 and related provisions of the Condominium Act and Article 6 of the Civil Code . Against this (). Mazarrón, May 22, 2012. The registrar. (Sign illegible). "
III
On June 13 requested substitute rating, corresponding to the register of Murcia Property No. 4, María José Quesada Zapata, which issued its rating on June 20, confirming the negative rating.
IV
On July 27, Mrs. L. L. T. in the representation of the Owners Residencial 4. P. appealed against the rating, which in essence argues as follows: "1. It prevents the entry of the amendment of the master deed of the homeowners that forms its statute, because the recorder understood to contravene mandatory standards in order the minimum content of the rights of the holders of separate departments. Article 5 of the Condominium Act admits that the title may contain rules and regulations exercise of rights not prohibited by law in order to use facilities, observing for any change in the title the same requirements as for the constitution. Requirements have been met to proceed with changing the title in order to the decision of the board of owners, and have been freely owners who have decided to limit property rights in the use of certain ancillary facilities of the property. Therefore remain safe individual elements of each owner and parties in ownership of key services, such as elevators, stairs and light cleaning of the building. Two. The limitations on the powers are not forbidden Sunday imperatively in the legislation. The Supreme Court Jurisprudence recognizes in setting a criterion that "these limitations can not be assumed, nor be interpreted so extensive '. So the limitations allowed private elements relating to certain commercial activities that would be permitted anywhere but not in that space. Well, in the same way be admitted to common elements. Similarly, Article 7.2 of the Condominium Act empowers the homeowners to totally restrict the property rights of the owner to the extent of three years, if within the element are developing proprietary annoying, unhealthy, noxious, dangerous or illegal. It is true that the Civil Procedure Act and the Condominium Act establishes a procedure for special features for the collection of the debts of the homeowners, but then to such a procedure being agile, shows a lack of speed of the Spanish justice. Debts take one or two years to not already collected, but declared, with no possibility of being extended by the passage of time, new procedures should be promoted for collection. Three. It is a modification of the instrument creating the homeowners, which has been done with the legal requirements, the amendment being adopted unanimously by all present and absent owners. This modification is intended to prevent abuse of some system owners through Article 5 of the Condominium Act and the rules of procedure set forth in Article 6 of the Act, because it is the right limit ownership of common elements. Y is used
CVE: BOE-A-2012-14272
GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80639
the predetermined procedure of Article 5 of the Condominium Act, that such a ban is included in the statute, because otherwise no one would be deprived of using the property as best consider, and this real right of broader content, like to enjoy and dispose of things without other limitations than those established by law (Civil Code 348), and based on the possibility that by the statutory provision is possible imposition of certain restrictions on the property. The Court has declared that such limitations be construed restrictively as constituting an interference with property. (Judgments of the Supreme Court of February 6, 1989, July 24, 1992, April 21, 1997, February 29, 2000 and January 26, 2002) ".
V
By letter dated August 7, 2012, the register of the property issued its report and submitted the file to the Management Centre (with check on the 9th of the same month).
Law
Having regard to Article 396 of the Civil Code, 3, 5, 9 first e), 11.2, 15.2, 18, 21 and related provisions of the Condominium Act; Judgment of the Constitutional Court of October 21, 1993, Supreme Court Decisions 6 July 1978, January 28 and March 8, 1994, the Constitutional Court Judgment 301/1993, of 21 October, and the resolutions of the General Directorate of Registries and Notaries of June 4, 2003 and 18 June 2010.
1. You must decide on this record whether or not registrable deed of amendment of the articles of a community of owners in horizontal property regime, which includes an article by which blocks access to the community pool and tennis commonalities-tennis-owners who do not contribute or are in arrears in paying their community fees ordinary or extraordinary. The point is to determine whether it can establish statutory rules which make limitations on the use of certain elements in common, the lack of payment of community fees in view of the regulation in the Condominium Act systems and procedures for performing the above odds.
Two. The legal nature of condominiums is based on the coexistence of the property of the various elements that may be utilized independently and special joint ownership of the common elements, so that both ownership and private elements of common ownership are inextricably linked. This follows from Article 5 of the Condominium Act, which states that the title may contain rules governing the constitution and practiced law and provisions not prohibited by the Act in order to use or purpose of the building, different floors or premises, facilities and services, forming an exclusive status. The Board has declared Center (seen) the horizontal property regime is characterized by the existence of a single object whose property rights is complex: the floor, exclusive local or department and inseparable in ownership separation of the elements, belongings and common services of the building, in accordance with Articles 3 of the Condominium Act and 396 of the Civil Code, whose main features is the inseparability and unavailability of the parties share joint ownership of common elements, although this does not necessarily imply intensity equal right over them all, being necessary to meet the characteristics of the goods themselves to appreciate that intensity, starting at any rate the subordinate nature of the common elements that remain are precisely defined by the proprietary service, while are needed for use and enjoyment, as proclaimed in Article 396 above. And yet one would, for these purposes, differentiate between those
CVE: BOE-A-2012-14272
GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80640
common elements defined as precisely as indispensable in every respect for the proper exercise of the right of separate property on private elements, in which the intensity of the right must be virtually identical to that of which holds about one's private elements, and those that are common for express voluntary, common elements by destination, whose legal system is, from the outset, defined the bargaining will manifested in the master deed or bylaws.
Three. The horizontal property regime and its exclusive status is governed primarily by the mandatory rules of the Condominium Act and secondly by the autonomy of the parties, embodied in the master deed and bylaws, but in this second case, only they do not oppose the Horizontal Property Act itself and its mandatory rules, and Article 396 of the Civil Code, especially in your last paragraph, and Articles 8.4. º and 5. ° and 107.11 of the Mortgage Act. Indeed, the Supreme Court, in a judgment dated 8 March 1994, citing law that proclaims that the general rule regarding condo is the imperative, not autonomy. But this does not preclude the possible agreements or statutory changes that do not affect the essential structure of horizontal property regime are consistent with it. At this point it should be noted the different classes of common elements, and the possibility of attribution of exclusive use to certain owners to the exclusion of such use to others, and also the rules on contribution from owners on specific improvements facilities and the ability in some cases to deprive them of the improvement or benefit to those who have decided not to contribute to your installation (see Article 11.2 of the Condominium Act).
April. On this basis, it must determine whether the statutory provision referred to the negative rating of this resource object exceeds the horizontal property regime for mandatory rules contravene or violate the essence of the right of ownership. In writing of this file object, intended to be limited normal and essential content of the co-ownership of the common elements regarding private elements those owners who are not current in payment of dues of ordinary and extraordinary community, prohibiting access to Community pool and tennis courts also common. Certainly the Condominium Act, in the case of default of payment of community has provided the implications and consequences of this regulation is contained in mandatory rules. Hence these consequences consist of privileges and limitations as the real condition of the floor to the costs of the current and previous annuity (article 9.1 of the Condominium Act), or the suspension of the voting rights (Article 15.2 of the Law Horizontal Property), or a special procedure for payment (Article 21 of the Condominium Act). But the mandatory nature of these provisions, which necessarily has to involve the inability to alter the terms contained therein by agreement, not exclude, however, that bargaining will establish forecasts parallel and complementary to those specified therein, not only not be considered contrary to such expectations but consistent with the purpose of the legislature that each owner contributes to the payment of the common elements not to harm others, in the meantime, they should meet with their own assets the owner nonpayment of delinquent . The condo specialty is precisely that with custodial property there is a community on the common elements must contribute to its upkeep by all co-owners. The Constitutional Court in Case 301/1993, of October 21, highlights (third legal basis), in the condo, "you need to balance competing rights and interests of a plurality of owners and occupiers of the flats, justifies undoubtedly legal or statutory fixation of specific restrictions or limits on the rights of use and enjoyment of the property by their respective owners' argument that the Court applies to proclaim the constitutionality of the rule in the last paragraph Article 7 of the Condominium Act, as set
CVE: BOE-A-2012-14272
GAZETTE
No. 279 Tuesday November 20, 2012 Section III. Page 80641
a civil penalty of temporary deprivation of the use of proprietary element itself, "wherever it appears certain violations of the ordinance." Certainly in the case of Article 7 is temporary deprivation of use of the home pursuant to a court by reason of a prohibited activity, but this shows that he is against the condo regime deprivation of the use of certain items when there is reason to justify proportionality. In this case, the statutory provision refers only to the deprivation of access to a special class of common elements such as the pool and tennis courts, which fall within what could be considered common elements are those needed to habitability, security or accessibility of the property, but his character beyond what could be considered elements for housing and as it is not deprivation of property rights but their mere use with merely possible until there is an at Day in contributing to the maintenance costs required, must be regarded as affecting the substance of the right of ownership, but on the contrary, that limitations are consistent with this regime of property that is community property horizontally. Article 11.2 of the Condominium Act and provides that certain owners do not enjoy the benefit of those improvements or facilities to which they have contributed. It is also fully recognized that is attributable exclusive use of certain elements common to some owners to the exclusion of others in the case of patios or decks or other exclusive use. Similar considerations lead to a statutory provision that prohibits access to the common elements of pool and tennis court owners who do not contribute to its maintenance or so and only casual or temporary, can not be regarded as contrary to the law nor those of condominiums, being a statutory covenant that contributes to all owners share in defraying the expenses derived from these common elements.
May. The statutory provision therefore is deemed consistent with the law, since neither expresses no mandatory rule contravenes or violates the minimum content of the right to property, given that only represents a temporary deprivation of the right to use, for some elements not necessary for the proper use and enjoyment of the corresponding element proprietary, and thus as a result of the violation, by the subject that will suffer the suspension of the rules governing the maintenance of the property.
Accordingly, this Department has agreed the action brought and revoke the note rating.
Against this Resolution may use the legally legitimized by application to the Civil Court of the capital of the province where the property lies within two months of notification, be subject to the regulations of the oral proceedings, all in accordance to the provisions of Articles 325 and 328 of the Mortgage Law.
Madrid, October 23, 2012.-The Director General of Registries and Notaries, Joaquín José Rodríguez Hernández.
CVE: BOE-A-2012-14272
GAZETTE http://www.boe.es D. L.: M-1/1958 - ISSN: 0212-033X

 
 




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31 May 2013 8:49 AM by ehw Star rating in Western end of the C.... 59 posts Send private message

@lobin, semo and others.

Many thanks lobin for the extract from the BOE, it's exactly what I was looking for and couldn't find even though I have the entire BOE for that date.

I did finally manage to speak to my brother-in-law and as I result I am having humble pie for lunch today. I think I'm going to have to sack him as my adviser for failing to keep me up to date.

In the case of Kelly I can  see it being a counter productive measure because she's willing to pay off her debt but will be unable to do so if she loses the tenant as a result of the swimming pool being placed out of bounds.

Such is life in Spain.

 

 



_______________________
I do not object to folk who want to talk about Brexit, this is a free world



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31 May 2013 10:48 AM by semo Star rating in Ireland. 84 posts Send private message

In order to modify the community statutes you need unanimous decision (article 17 Horizontal Property Law). According with the law, all present and represented owners (who have right to vote) must vote in favour of the modification at the AGM or EGM (an specific point in the Meeting’ Agenda must be included)  Those owners who don’t attend or who are not represented at the AGM, will be considered as  voting in favour, unless they notify in writing any eventual discrepancy within 30 days.

This is the advice i received in relation to changing community statutes.

 





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05 Jun 2013 3:05 PM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

16 Nov 2013 4:00 PM by kellylieberman Star rating. 25 posts Send private message

Hi everyone, I'm managing to keep the wolf from the door by paying large regular installments off my debt to the community but I have another question.  The President has put up a list of debtors by the letterboxes which is on a public road.  He has also been hassling my tenant even though no payments have been missed.  He just likes to make things difficult for me.

I have been told that for him to discuss my situation with a third party who is not a co-owner or the administrator, or to publish a debtors list publically is against the Spanish Data Protection Act and the community could be fined quite heavily.  I've done some online research and it seems that this is correct but I would just like that confirming.  Also does anyone know of anywhere that I can download documentation that verify this.  I would like to be able to attach a copy when I make a complaint.  

Thanks guys

 

 


This message was last edited by kellylieberman on 16/11/2013.


This message was last edited by kellylieberman on 16/11/2013.



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18 Nov 2013 1:14 PM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message


_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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18 Nov 2013 4:14 PM by kellylieberman Star rating. 25 posts Send private message

Thanks Maria.

Regarding the file of debtors of the community, it is required that they are managed commensurately to the purpose of debt collection and the manager must always act diligently on the updating of these debt status, charges, payments...

Does that mean they are not allowed to make the debtors list public?





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18 Nov 2013 4:18 PM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

If the means they are using are not proportinated to the aim of debt collection, of course they are breaching data protection Law.

Generally the list is just ( and that is enough) included in the agenda of the General Meetings but not in other public spaces. That is, in my opinion, unproportionate.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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18 Nov 2013 8:52 PM by kellylieberman Star rating. 25 posts Send private message

Thanks Maria if I am to take them to task on it I need to be able to back it up with some documentation or I will shoot myself in the foot!  Can I find anything online anywhere?





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18 Nov 2013 8:54 PM by kellylieberman Star rating. 25 posts Send private message

I think that they might argue that 'naming and shaming' publicly is proportionate as a tactic to get people to clear their debts





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19 Nov 2013 12:33 PM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

Posting publicly ( on the neighbours board) can be a breach of Data protection regulations as the only legal communication/ publication that is allowed by the Horizontal Property Act is the inclusion of these facts within the agenda and minutes of General Meeting, where the matter needs to be discussed and decided.

If the posting at the News Board have been decided by the Community of owners in a meeting, this would be a legal treatment of the same. 

 

 



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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19 Nov 2013 12:52 PM by kellylieberman Star rating. 25 posts Send private message

So what you're saying is that if it has been decided at a Community Meeting to post a list of Debtors publicly this would not be a breach, is that correct?





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19 Nov 2013 1:05 PM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

Yes, because it has been the same Community which have decided to do so, for the sake of having debts paid, this decission needs to clearly obey to the reason of other communication to members of the Community being impossible. 

Data needs to be accurate of course and the account of facts to be 100% truthful.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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19 Nov 2013 1:12 PM by kellylieberman Star rating. 25 posts Send private message

Thanks Maria.  Sorry to labour the point, I just want to make sure I've understood correctly.  Are you saying that this decisicion can only be made if all other forms of communication with the debtors have proved unsuccessful and so the decision is made in order to try and get the debts paid.  If however communication with the debtor has proved successful the decision to publicly display a list of debtors is not acceptable.





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