Limiting who can be in position of President

I've just received the minutes of an AGM held on 15th June this year, later than I'd expect but hey at least they arrived eventually.

Having read them, I find that the 14 owners present (of a total of 35 properties) who hold a total of 39.31% of the shares, have supposedly taken a decision to rotate the position of President - that's fine by me, but they've also decided that if the rotation falls on a property where the owner is not fully resident in the property then the Presidency skips over to the next property.

I'd love to hear if anyone knows if this is a legal decision - first off, I would have expected such an important issue to have been listed in the Agenda circulated before the meeting; in this case this item was not listed.  The decision is listed under an Item heading "Renewal fees for the year 2015/16"

Secondly, I would have thought that such a change would require a unanimous vote from 50% +1 shareholders; in this case only 39.1% of shareholders attended.

Finally, does this purported decision not go against the HPA regulations

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Hopefully one of you will know the answer to this, though if not perhaps someone knows who I can contact to find out the answer.

Thanks

As I understand the HPA:    Any owner can be required to be president.  That is if voted in by a simple majority at an AGM.  The fact that they do not offer to be such,  do not want to be , don’t actually live in Spain, don’t speak Spanish etc.  makes no difference.  

So if the simple majority decide to skip an owner or select an owner,  that's fine too.

Quote;  1   Finally, does this purported decision not go against the HPA regulations

.            2  Hopefully one of you will know the answer to this, though if not perhaps someone knows who I can contact to find out the answer.

 See Horizontal Property Law and read it up then you will know.

Agree with John. If the majority at the AGM agreed (in this case, 8 owners representing at least 20% of the total), then I think it's fine. It also makes perfect sense to skip non-resident owners. It's in the best interest of the community. We have a similar agreement in our community, recorded in the minutes of a previous AGM  (only one trouble-making non-resident is opposed to it, but it makes no difference because if she ever proposes herself as president, she will get precisely NO votes!) 

Never heard of any decision requiring "a unanimous vote from 50% +1 shareholders" - that sounds like saying a majority of the unanimous vote or something. Can't quite get my head around it! Either a unanimous vote (of those present) is required, or a majority (of those present)

From section 17 of the HPL: "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."  And "resolutions adopted by a majority of those present shall be valid if they represent more than half the value of the assessment quotas of those present."

The only grey area I can see is that the proposal was not listed in the agenda for the meeting, and since 3 months has elapsed between the meeting and you receiving the minutes, you did not have a chance to either vote on, or contest the issue. This could be illegal.

Having said that, since you are presumably non-resident yourself, why would you object to this? As I said before, it is in the best interest of the community that the president is resident in the community, and all non-residents should be eternally grateful that somebody is looking after their inverstment while they are absent, at best for no reward and often no show of appreciation, but at worst with constant complaints and bickering about how the job is done, decisions that are made, accusations of corruption etc. etc....

Thanks johnzx and Roberto.  I managed to find a lawyer to give me his interpretation on the the dilemma - he says it is a null and void decision as it is illegal on the basis that it should have appeared as an Item on the Agenda, so could not be voted on, and also because the Community cannot override the HPA.

I doubt very much if I'll actually do anything about this, other than to find a translator/administrator who can attend meetings with me, or on my behalf, to avoid a similar thing in the future.

The reason it's cutting deep can be seen from my other post about disregading a vote, getting more owners to the meeting (unregistered and unproven to have a legal vote) then take another vote.  It's all getting just a tad uncomfortable for no apparent reason other than having a new President - maybe I'll just offer my house free of charge to a refugee for a few months and see if that helps the anti feeling !

It surprises that the lawyer gave that opinion, however, in reality it makes little or no difference as at future  AGMs when presidents are elected those present can chose any owner to be president, so can decide not to choose one that is not resident.

"...illegal on the basis that it should have appeared as an Item on the Agenda, so could not be voted on, and also because the Community cannot override the HPA."

It's an interesting point, because our administrator brought this up for the first time recently. However, I've studied the Horizontal Law (sad, I know) and have never come across anything specifically saying this. There may be various clauses that hint at it, such as "those who were absent for any reason and those who were illegally deprived of their right to vote shall be entitled to challenge these resolutions." But nowhere does it actually say that if an item is not included on the agenda, and an owner does not attend the meeting, that this constitutes them being illegally deprived of the opportunity to vote. After all, they could have attended the meeting, nobody prevented them. And what's the point of "any other business" if nothing brought up under that category counts? If this is the law, then IMHO it's excessive & potentially obstructive and should be changed. (Similar to this from the preamble of the HPL: "the unanimity rule is deemed excessively strict in as much as it hinders implementation of certain actions considered beneficial for property owners’ communities".

In your case, I would have thought the decision should have been discussed and recorded under "election of officials" or whatever. And since it's not a decision that represents any significant change to the running of the community on a daily basis, nor to any installations, nor will result in any additional or unexpected costs, I can't see why it would be an issue anyway. 

Even if it turns out that the decision is illegal (and it gets overturned) it's probably irrelevant anyway, since next year's AGM will be attended by (and represented by) the same people (the ones who live there and do all the graft), who will simply vote for the next owner on the rota who they accept. The "skip" will happen anyway.

This seems to be a case of asking 5 solicitors for an opinion and getting 6 different answers.

The appointment of President and Officers was an agenda item the majority agreed on a way to appoint him/her.

14 out of 35 owners is an amazing turnout and if they decided on an action regarding the President, I can see no reason why their majority agreement should not be honoured if this is how they felt about Residence

obviously all owners should have been given the 30 days to protest, so late minutes is not an ideal scenario.

http://issuu.com/mariadecastro/docs/88_q_a_on_community_of_owners_in_spain

Questions 69 et seq

Seems Maria just proved Hugh's point ;-)

Thanks to Maria for her post.

I''m not convinced Roberto, I think it just takes us back to the original question of whether a decision to skip properties where the owner is not resident can be enforced (quizzical face as I'm not able to insert a smiley)

Maria's number 69, says any owner can be voted in as President.

Number 70, says a President does not have to be resident the only requirement is to be an owner.

Then number 71, says If nobody puts themselves forward for the task then "A turn is then in place and the corresponding owner by said turn will be the president." there is no mention of being able to skip a property owner for any reason.

So one might interpret Maria's Q&A, which I read before my initial post, actually agree with the second part of the answer I received locally yesterday, that a Community cannot go against the HPA, which I've read many times over the last few years and as a retired accountant I can see ambiguities arising from so many angles.

In this case, I would read Maria's Q&A to be that IF next year the current president stands down and IF no owner puts themself forward for election THEN the only option available is to take the position to the next turn with no vote being required AND no legitimate reason to skip over to someone the meeting attendees prefer.

It just goes to show we can all read things differently and there are often two right answers :-)

I was looking at this on my mobile earlier and didn't realise there was more to Maria's document - I only got points 1 to 5, so apologies to Maria. I still haven't had time to read all of Maria's Q&A, but it still seems purely academic to me, since as I said before, and John & Hugh seem to agree, those present will just propose the next person on the rota who they want, (who will presumably be one of those present, so will not object), and the vote will carry it.

Warning: Off topic!

As for "interpretation" of rules, laws or simple conversations, I've recently discovered that the Spanish verb "interpretar" is right up there with "intentar" when it comes to convenient ambiguity. Example: a (non-resident, interfering) neighbour was unhappy about something our gardener did (he pruned some flowering bushes which were growing over a pathway, causing in his opinion an obstruction and potential danger). Said neighbour asked me (president) if it was the gardener's decision, or if I had instructed him to do it. I told her that I did NOT instruct him to do it, that the gardener is a paid professional capable of using his initiative/experience etc. and of making decisions when it comes to gardening, that we pay him for just that since I am NOT a gardener...but that I understood his reasons and approved of them. She chose to "interpretar" that as meaning I instructed him to do it, and lodged a complaint with the administrator (who 100% agrees with me and the gardener by the way!) about me being a dictator, and caused an unholy row over nothing. Interpretar = to believe something means just what you want it to mean. Interesting that Google translate gives "play" as the first offer for an equivalent to "interpretar". Presumably referring to a play on words?

Intentar: I shudder when I hear this verb. It's essentially a more sophisticated version of the familiar "mañana", and basically means something like "yeah, right mate, what-ever"!

Again, apologies to Maria (and all Spanish speakers), no offence meant!

Soloyo

Glad to see you managed a 😀 at the end.

exactky my point about different opinions and reading of what can be a fairly ambiguous set of rules of HPA.

You are right every owner if paid up whether resident or not has the right to be President but many would view the fact that if a majority vote at a legally constituted AGM decides to alter the role so that Residents only can be elected, I cannot see that interfering with the running of the Community or being unreasonable, let alone illegal.

But hey, others might.

i also totally agree about mis translation, remember the Acta book of minutes is the only legal document NOT any translations.

That's a great point, thank you for the laugh Roberto.

hugh_man, I love to smile but as a newcomer to this forum I'm only allowed to smile sideways - only you super-starred authors are allowed to smile the right way up !!

Back to the real topic, as if things weren't already muddy.  I sent the question to another Spanish lawyer on Saturday and they've just responded with the following slant on the issue:

As the decision was discussed and minuted under an item headed “4 Renovación de cargos para el ejercicio 2015/2016" (unofficial translation: Renewal fees for the year 2015/16) their opinion "is legal and binding as far as that period is concerned, no for renewal of president for the future"

Marvin Minsky said "You don't understand anything until you learn it more than one way.

And here's another example of "interpretation" (or inthis case, straight forward translation) 

I said earlier that I thought the decision should have been discussed and recorded under "election of officials", since that would be the relevant point in the meeting. As this is always an item on the agenda, any decisions recorded under this heading would be legally binding.

But now you say it was recorded under "Renovación de cargos" - the Google translation of this may be "renewal fees", but my understanding (interpretation, if you like) is "renewal or re-election of officials" (i.e. president, vice-president, admin etc.). It should probably be "Renovación de encargados", but that would be less ambiguous and therefore less Spanish! Maria??

Having said that, this lawyer's answer is also ambiguous of course, because he says the decision is legally binding, but only for one year, even though the decision refers to the future, not this year! So that's 7 out of 6 now, Hugh!

Agree wth you that the HPA ( Condominium Act) is technically vague and open to interpretation. Then, there is always the possibility of members passing by-laws and Internal rules so.... many situations require a lot of interpretation again.

Maria - sobre tu Q&A: punto 70 dice que el presidente no necesita vivir en la comunidad; punto 76 dice que el vice-presidente es el encargado cuando el presidente esta ausente. Entonces...si el presidente no vive en la cdad., el nunca va a hacer el trabajo del presidente, siempre el vice-presidente tiene que hacerlo. ¡Es solo mi "interpretación"! ¿Y que pasara si el vice-presidente tampoco vive en la cdad?

Roberto:

President just needs to be an owner, it does not need to have that property as its permanent residency

Once you are a president, if you need to be absent-- travelling, sickness--- for a period, the vice president acts.

Hope this helps

Though a number of people are for some reason scared to the President, just think how often you would have to do it.

How many propertys are  in your community, 2 joint owners in each  property, as a rough guide we have 43 propertys so my turn would be once  every 85 years ¿ , 

We had a problem last year on voting in a new President, though over the last 9 years it has been expalined the requirments and law on the position.

Come the A genda being sent out prior to the  AGM it was expalined the present President will not stand for a third time a new `President will be voted in.

AGM day come President´s poition came up, no Volunterrs, so what next , President will be next property down voted out, Ballot voted out Surname order voted in, new President told .

Now not that we speak to elected  President and he lives next door he has told people he is not going to do it, number of reasons does not want to be in  community, was not at meeting to vote or have his say (stopped in his house), no need for a President or a community, not got the time to do it.

Hence told in minuets of AGM he must go to a Judge to explin WHY he will not do it , 1 year down the line he has still no contacted the old pres, collected e-mail addresses, names of owners, bank details etc.

Fortunatlly we don´t have nothing by the way of many communal elements, pool, gardners security etc that other communitys have, and 15 months down the line still no contact from President . The only thing we are missing out on is the Town Hall have requsted a meeting with ALL Presidents in the area to give us Residance infomation updates on certain things about changes in local law, building works etc.

But hay hum we wait and see as one day it will come back and bite him 

Which begs the question(s): who did the work of the president instead? And what, in fact is the work of the president? Clearly, some communities can continue to function without an active president. But how? If every decision is left to the administrator, there is no control by owners on how their money is spent.

I think in many larger communities, particularly those with dedicated on-site administrators, the role of president is probably mainly figurative, perhaps just annually checking the accounts. In smaller communities (ours has just 12 apartments, one large local, pool, garden) the president's role is far more important and hands-on, almost that of caretaker. Our adminstrator earns about €85 per month from us - there's only so much he's going to do for that!

Maria, clearly when the president is absent for whatever reason, the VP takes over. But if the president is permanently absent (because he lives somewhere else, for example UK) then really the VP is doing the job of president.