Oh, no! It’s that dreaded time of the year again – you groan –, an AGM is up next. Marked in red in your calendar, you know you’re in for a rough ride. You rattle your brain on who you can delegate your vote so as to avoid attending personally. Hmm, how about them charming Swedish couple living on the ground floor?
By Raymundo Larraín Nesbitt
Lawyer – Abogado
10th of October 2011
After years of sowing problems, malcontent is generally rife in Communities of Owners (Comunidad de Propietarios, in Spanish). General Assemblies develop into pitched battlegrounds in which all the budding problems that have slowly been brewing up over time concoct and all hell breaks loose. Disgruntled owners with an axe to grind sprout from the woodwork. Owner’s Assemblies are the perfect venue to voice their discontent and rally followers to their cause even calling in artillery strikes (lawyers) if needed be.
Lawyers are – of course – only too eager to assist in the ensuing mayhem!
The truth of the matter is that the vast majority of owners do not attend General Assemblies. Many have been previously scalded in prior AGM’s and would rather avert protracted squabbling for hours on end altogether delegating their vote.
The problem is that on doing so, unbeknownst to you, resolutions may be passed that are detrimental to your interests i.e. its approved that your neighbour can install his noisy A/C unit right below your master bedroom window. Trust me, you won’t get to sleep anytime soon in summertime.
That’s why at times Assembly resolutions may need challenging as they can be unfavourable to either the Community and/or yourself.
Before you continue reading this article I strongly advise you read first my article on Comunidad de Propietarios: Avoiding Problems with your Neighbours in Spain from the 26th of June 2009. Said article clearly lays out the Spanish Commonhold Act principles and its legal framework. The following article is using it as a necessary stepping stone to focus on a particular problem (challenging Assembly resolutions). Concepts such as Community By-laws (aka Community Statutes), Internal Community Rules or even what a Master Deed is are concisely explained within and are deemed necessary to fully comprehend the following article.
Section 19 of Spain’s Commonhold Act (Ley de Propiedad Horizontal 49/1960, amended significantly by Law 8/1999) deals with the recording of the resolutions reached. They will be recorded in a book of minutes, validated and stamped by the Land Registrar. By Law, a copy of the meeting’s minutes (normally a photocopy) should be sent to each owner with the adopted resolutions following either the AGM or EGM. The secretary will act as the custodian of the general meeting’s minutes book.
Make sure you verify what resolutions have been passed, regardless whether you attended or not. If you spot one that affects you adversely it’s high time to challenge it.
Section 18 rules on how Assembly resolutions ought to be challenged.
By the word “challenged” it is understood that this is carried out though a court decision i.e. judge’s ruling. It does not suffice, although it is formally required to challenge, to record your dissenting vote. Sending recorded letters (i.e. burofaxes), post Assembly, addressed to the Community’s President showing your disconformity to a passed resolution, being vocal about your discontent, chain e-mailing fellow community members et cetera serve no practical purpose whatsoever other than to unwind letting off steam. Legally, as per the Commonhold Act, if you really want to challenge a resolution it needs to be done through a lawyer before a court. Only a judge’s resolution can successfully overturn what has been approved democratically at a GA.
This can be done on three accounts only:
1. When such resolutions are contrary to Law or the Community Statutes
a) The proposed resolutions were not included on mailing the voting agenda of the Owner’s Assembly which is sent to each owner prior to the meeting being held so they know in advance what is to be voted. Owners are therefore at a disadvantage as they may be blissfully unaware that a particular resolution that affected them was going to be passed i.e. no-one mentioned your neighbour’s A/C unit was to be placed right below your master bedroom window.
b) When the required majorities detailed in section 17 are unmet. Some resolutions, depending on their nature, may require unanimity in lieu of majority votes. Unanimity is required, by law, to modify a Master Deed or the Community’s By-laws.
2. On them being seriously detrimental to the interests of the Community and benefit one or several unit owners.
a) The authorisation to one owner to use exclusively a communal element belonging to the Commonhold i.e. the President may now use the flat roof or a communal parking space for his own private purposes.
b) Writing-off existing arrears from one of the owners i.e. the vice-president’s brother-in-law
3. When they are seriously detrimental to some unit owner who has no legal obligation to sustain such detriment or when they were adopted in abuse of rights.
a) When the Owners’ Assembly adopts some owners paying more than they should i.e. villa owners in a golf resort paying the same community contribution than a one bedroom flat. It is blatant that larger properties (with have larger Commonhold quotas) ought to contribute more.
b) When the OA turns down an owner’s petition which causes him harm i.e. they do not allow him to install glass curtains to enclose his terrace when other owners have been previously allowed, whether tacitly or expressly.
As a general requirement, only owners who are up-to-date with their community fees may vote and challenge community resolutions before a court (section18). You may even pay your arrears on the same day the GA is being held and thus be allowed to vote. Alternatively you can lodge all arrears before the law court that will be hearing your case.
As a particular requirement, if you do assist to an Owners’ Assembly it is of paramount importance your dissenting vote is recorded at the agenda’s minutes by the Secretary. It must be expressly recorded that you plan to challenge said resolution at court. If it’s not carefully worded as I write, it is highly likely the judge will turn down your petition to challenge it. It does not suffice that in the agenda’s minutes it was merely recorded you casted an opposing vote. It must be specifically written and recorded that, besides your opposing vote, you plan to challenge this resolution at court. Many Owners’ Assembly resolutions which are challenged result in being thrown out of court because of this apparently trivial detail. The Devil is in the detail.
It goes without saying that all resolutions passed by the General Assembly are mandatory for every owner unless they formally challenge it i.e. through a law court represented by a lawyer. The reason being is that as per section 17.1 and section 9 all owners who have been notified of the adopted resolutions and have not formally opposed them are legally presumed to have voted favourably.
The deadlines are to be counted as from the following day on which they were passed at the Assembly and are natural days (as opposed to working days).
Example: resolution adopted on the 3rd of March which is detrimental to the Community’s interest. The deadline is 3 months, starting on the 4th of March and ending on the 4th of June.
Initially there were only three deadlines in Spain’s Commonhold Act. Albeit a recent Supreme Court ruling added a fourth one as doctrine.
i) There’s a deadline of 30 natural days if you neither assisted to the Owner’s Assembly nor did you delegate your vote on a resolution that formally requires a unanimity vote i.e. affecting the Master Deed or the Community’s By-laws. This is counted as from the time you received in your mail box a copy of the passed resolutions or else as from the time they were posted in the Communities billboard. A letter must be sent to the Community’s Secretary acknowledging your dissent and your intention to challenge the passed resolution at court. I suggest this letter is sent by recorded delivery with acknowledgement of both content and receipt (i.e. burofax). This letter will be used at court on challenging a resolution. If you don’t do it exactly in the described manner, it is presumed you voted favourably as per section 17.1 in which case you are bound by law and must obey the resolution.
ii) A year if you neither assisted to the Owner’s Assembly nor did you delegate your vote
iii) 3 months as from the time the resolution was passed (if you assisted or delegated your vote) when it is detrimental to the Community or to a unit owner or else was passed with abuse of rights.
iv) A year if they are contrary to Law or the Community Statutes (By-laws). If after a year elapses it still remains unchallenged the adopted resolution becomes resolute and is convalidated despite it being contrary to Law or the Statutes.
I would advise challenging an adopted resolution as soon as possible and preferably always before the three-month deadline is up. The reasoning behind this is that a judge might not concur with you labelling a resolution as contrary to Law or the Community Statutes in which case you wouldn’t have a year to challenge it, only three months. You would run the risk of having already surpassed the three-month deadline to challenge it and your case would be thrown out of court as a result.
It is a fairly common blunder that owners, blinded by their own self-righteousness, deceive themselves into thinking the conflicting resolution is indeed “illegal” and therefore have ample time to litigate (one year). This may -or may not- be the case depending on the judge’s ruling. It is far wiser to play it safe and not take risks challenging it at your earliest convenience within the said three-month deadline.
If you foresee problems with your Community of Owners I strongly advise you to hire a lawyer that can safely guide you through the Commonhold Act minefield. Bear in mind that opposing forces will bring their own lawyers into the fray!
“The first thing we do, let’s kill all the lawyers” – William Shakespeare. Henry VI, Part 2.
World lauded English poet, playwright, and actor. Arguably the finest writer in English language.
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2.011 © Raymundo Larraín Nesbitt. All rights reserved.