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The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain

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Posts Tagged ‘community of owners spain’

Can Presidents of Communities of Owners receive Remuneration?

April 6th, 2015

PROPERTY owners are filing increasing numbers of complaints about presidents of the comunidad de propietarios (community of owners) in their buildings.

Abuses of power, passiveness, overstepping legal boundaries, refusal to call annual general meetings and to sanction budgets, unauthorised maintenance and using community funds without approval are common grievances.

Considering that this is technically a non-remunerated post, this may sound like unnecessary aggravation for the presidents. However, could it be that some community presidents are being paid salaries or taking backhanders, and as result, acting like a toxic workplace bosses?

We shall leave the second scenario for now – as it is difficult to prove – and address the main question: are presidents of communities of owners entitled to remuneration?

The Horizontal Property Act is mute on this point as it neither endorses or bans it. Caselaw on the contrary is more specific, giving the following clues:

The Appeal Courts of Malaga, the Balearics and Tenerife have declared that presidents cannot have a fixed remuneration although

they may be compensated for the costs and trouble inherent to carrying out the job of President.

The Appeal Court in Las Palmas holds a contradictory case where statutes specifically state: “

the President of a specific Community will not generate remuneration,

adding however

this prohibition is not incompatible with covering representation expenses, more or less modest, against submission of receipts or invoices for the most relevant expenses.

The appeal court in Granada is more restrictive and states:

while prima facie the job of President is pro bono, such a mandate is not incompatible with receiving consideration by the community.

In this case, an AGM resolution where the president was exonerated of paying his monthly fee was deemed void because it

altered the coefficients of ownership within the community of owners … and a professionally remunerated administrator can do this job.

On the contrary, the Appeal Court in Barcelona is adamant about the validity of the prohibition since the Catalan Civil Code specifically envisages the unpaid nature of this job.

Regarding the required quorum in an AGM (or EGM), most courts consider that a resolution to grant a regular remuneration requires unanimous consent, if it goes against the statutes or articles (because they stipulate that it is an unpaid job), whereas a resolution to simply cover representation expenses can be decided by a majority of votes, irrespective of what the statutes or articles state.

Property , , , , , , ,

Can Communities of Owners Chase Unpaid Fees Through Foreign Courts?

December 19th, 2014

Some days back, an interesting legal matter was raised by a customer who had received, in his Liverpool home letterbox, a letter from UK-based solicitors demanding payment of unpaid “Community Fees”, on behalf of the administrators of a Fuengirola Urbanization.

On reading the content of it, it was clear that the 2nd class-delivered letter raised an important legal question: Can a Spanish Community of Owners legally pursue such debts through any EU-Court?

One of such law firms seemed to have to answer to this:

[…] Where defaulting owners are resident in the UK or Ireland, we avoid the delays and difficulties described above by recovering the debt directly in an owner’s country of residence.  This we do by relying on the European rules permitting debt to be recovered throughout the European Union, no matter where that debt was generated within the European Union.

European rules referred to by the debt-recover firm are none other than the REGULATION (EC) 1896/2006 CREATING A EUROPEAN ORDER FOR PAYMENT PROCEDURE, and the lawyers would have invoked article 2, which says:

[…] This Regulation shall apply to civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal. It shall not extend to…claim arising from non-contractual obligations, unless…they relate to liquidated debts arising from joint ownership of property.

A simple answer to a fairly simple question then? So we thought until Spanish Judges got involved to upset the EU consensus in a recent seminar held on the matter. Out of the 8 participating magistrates, only one accepted that both the Spanish and EU debt recovery procedures can coexist and therefore, be alternatively used by Communities of Owners. The dissenting judges argued that, although the EU Regulation specifically deals with this, Spanish laws and tribunals should take precedence inasmuch as:

i)                    The debt is classified as “ob rem” i.e. attached to a property, thus necessarily connecting the matter to the local Court where the dwelling is located in.

ii)                   According to art. 9 of the Horizontal Property Act, all owners are obliged to designate a Spanish address for notifications, thus impeding the application of foreign Courts and laws.

The matter is of great interest as once again, the Spanish judiciary clash with EU pragmatic law makers always keen to harmonize diverse legal systems. But then, can Spain be allowed to cherry pick the scope of application of EU laws when it has adhered to them, formally, as opposed to countries –such as Denmark- who have opted out?

And will English Courts (or for that matter, any other Court in the EU) not just consider, but even get to know that a group of Spanish Magistrates have ever expressed an opinion different from the official position? No chance.

Legal Practise , , , ,

Putting up a Debtors List in The Community of Owners Public Areas is Illegal

December 1st, 2008

shame2We have been recently approached by a client asking whether sticking ones name on a list of debtors for Community fees is a legal thing to be done by the President or the administrators office.

In the particular case the President considered that these debtors have to be named and shamed as if we were in the time of the Spanish Inquisition as in his opinion this was the only way to make owners pay.

In a case identical to the one above, the Data Protection Agency contended that the information of debtors published on a notice board allowed the public (neighbours but also outsiders) to know information on the personal financial situation of the claimant which should have been kept secret by the administration office so that only the co-owners of the complex could access such information. The Community of Owners was consequently fined with 601 Euros and will presumably demand this money from the President.

In our case we have urged our client to send a clear warning to the “President” advising him that he is in breach of the Data Protection Act and that a similar illegality was fined with € 601 by the Data Protection Agency although the fine could be stretched to a maximum of €60,101, which is what the Act stipulates.

Property , ,