Community
Law Corner:
Article 20
Can Communities Name and Shame the Debtors
by José Luis Navarro www.intercala.com
The Solicitor and Property Administrator for Intercala Administration
and
Pete Woodall (Woody's Los Boliches)
This article first appeared in the Euro Weekly News, Costa del Sol Edition January 2013
Can Communities Name and Shame the Debtors
It is unlikely that anyone would enjoy to be named in public as a debtor. In the past communities have successfully
used the “name and shame” trick of publishing a list of the debtors on their community notice board
as a way of pushing owners to pay their community fees. However data protection act legislation or rather the heavy fines applied by the Data Protection Agency for infringement of the law have made this in many cases inadvisable.
Spanish Data Protection Law (Ley 15/1999 ) is extremely complex and there are many areas without clear regulation,
but there are some aspects of the law which with understanding a community can still put to good use.
As follows.
Article 3a. Personal data is any information concerning identified or identifiable natural persons.
Consequently naming the owner of a property or that they owe to their community is considered personal data and therefore protected by law.
According to article 11a: The communication of the personal data to a third person or persons is only allowed for purposes directly related to the legitimate functions of the transferor and transferee and with the prior consent of the data subject.
The “data subject” in this case would be a debtor and the personal data the debt.
To place this information on a community notice board would be an infringement of the act,
as the information could be observed by a member of the public who has no direct legitimate involvement .
As it is unlikely that a debtor would give prior consent of the publication of personal information means the legal way to display a list of debtors on a community notice board can come from the Article 11 b.
Which establishes, that the consent of the person affected will not be necessary when the transfer of personal information is authorised by the law.
There is a proviso for this in the Law of Horizontal Property. Starting with Article 15.2.
Those owners who are not up to date with their payments to the community may attend the meeting but will not be allowed to participate in the vote.
Article 16.2, notifications of the meeting must be made according to conditions set out in Article 9 h and furthermore must include a list of those owners who are not up to date in their payments to the community and warn them of the impending loss of their right to vote.
Article 9h clarifies procedure and says that if all attempts to notify an owner of a meeting fail, then notification will be considered as having been made by publishing the notification on the community notice board or in a similar easily visible place, provided it is dated and an explanation is given as to why notification has been made in this way.
So by gluing these conditions together the community may publish a list of community debtors for all to see.
The list must be included in any notice published solely for the purpose of notifying some or at least one of the owners who could not be contacted personally of a forthcoming general meeting.
If all the owners had been notified, then to resort to publishing the notice of the meeting - and its legally required list of debtors - in a public place would contravene the Data Protection Law and the infringement will be punished accordingly. Communities and their administrators should be aware of the penalties they could face. Likewise caution should be exercised when using an open non password community website or blog.
As always we the lawyers for Intercala Community Administration strongly recommend you seek out competent legal advice in all matters regarding the law in Spain.
Can Communities Name and Shame the Debtors
by José Luis Navarro www.intercala.com
The Solicitor and Property Administrator for Intercala Administration
and
Pete Woodall (Woody's Los Boliches)
This article first appeared in the Euro Weekly News, Costa del Sol Edition January 2013
Can Communities Name and Shame the Debtors
It is unlikely that anyone would enjoy to be named in public as a debtor. In the past communities have successfully
used the “name and shame” trick of publishing a list of the debtors on their community notice board
as a way of pushing owners to pay their community fees. However data protection act legislation or rather the heavy fines applied by the Data Protection Agency for infringement of the law have made this in many cases inadvisable.
Spanish Data Protection Law (Ley 15/1999 ) is extremely complex and there are many areas without clear regulation,
but there are some aspects of the law which with understanding a community can still put to good use.
As follows.
Article 3a. Personal data is any information concerning identified or identifiable natural persons.
Consequently naming the owner of a property or that they owe to their community is considered personal data and therefore protected by law.
According to article 11a: The communication of the personal data to a third person or persons is only allowed for purposes directly related to the legitimate functions of the transferor and transferee and with the prior consent of the data subject.
The “data subject” in this case would be a debtor and the personal data the debt.
To place this information on a community notice board would be an infringement of the act,
as the information could be observed by a member of the public who has no direct legitimate involvement .
As it is unlikely that a debtor would give prior consent of the publication of personal information means the legal way to display a list of debtors on a community notice board can come from the Article 11 b.
Which establishes, that the consent of the person affected will not be necessary when the transfer of personal information is authorised by the law.
There is a proviso for this in the Law of Horizontal Property. Starting with Article 15.2.
Those owners who are not up to date with their payments to the community may attend the meeting but will not be allowed to participate in the vote.
Article 16.2, notifications of the meeting must be made according to conditions set out in Article 9 h and furthermore must include a list of those owners who are not up to date in their payments to the community and warn them of the impending loss of their right to vote.
Article 9h clarifies procedure and says that if all attempts to notify an owner of a meeting fail, then notification will be considered as having been made by publishing the notification on the community notice board or in a similar easily visible place, provided it is dated and an explanation is given as to why notification has been made in this way.
So by gluing these conditions together the community may publish a list of community debtors for all to see.
The list must be included in any notice published solely for the purpose of notifying some or at least one of the owners who could not be contacted personally of a forthcoming general meeting.
If all the owners had been notified, then to resort to publishing the notice of the meeting - and its legally required list of debtors - in a public place would contravene the Data Protection Law and the infringement will be punished accordingly. Communities and their administrators should be aware of the penalties they could face. Likewise caution should be exercised when using an open non password community website or blog.
As always we the lawyers for Intercala Community Administration strongly recommend you seek out competent legal advice in all matters regarding the law in Spain.