Community
Law Corner:
Article 11
Taking action in defence of your community
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 April 2012
There may be situations within a community where action should probably be taken to protect the best interest of your community but for some reason it does not happen . Often the reasons why not are quite transparent, the culprits are perhaps friends of the President, the culprit is the president or someone with influence has something to gain from no action being taken. The situations are often very familiar, an owner claims part of the community for themselves, a debtor goes continually unchecked, changes are made to a property that are not in keeping with the rest of the community or even a combination of all these.
Whatever the reason, the Law of Horizontal Property makes provision for action to be taken by an owner or owners, other than the President. In such cases there are several lines of approach, wait until the annual general meeting, call an emergency general meeting( EGM) to reproach the offender and ask them to mend their ways and right the perceived wrong, propose that the community take legal action to force the same or take individual legal action.
If due to perhaps self-interest, the President procrastinates and refuses to call an EGM then the owners may approach the community administrators directly and ask to hold an emergency general meeting. Community administrators are not empowered to just convene a general meeting at the drop of a hat, that is not their prerogative. The law requires that they are approached by owners that represent at least 25% of the community. In Spain every community is divided into shares, the total of which must equal 100%, and each property is attributed its percentage share (quota). For example, in a community of 20 separately-owned properties each with an equal share, then a minimum of 5 owners would be needed to make up the required 25% to call a meeting. If this is the case then the meeting may go ahead with or without the Presidents blessings. Clause 16.1 of the Law of Horizontal Property is quite clear on this.
Once the meeting is under way then things can proceed in the normal fashion but if the meeting fails to materialize or the community still does not act the Law of Horizontal Property provides the possibility for an owner to take individual legal action but there are consequences depending on the outcome.
If the court rules in favour of the owner taking an individual action. For example, making a claim against a debtor for unpaid community fees then the money paid in court would go not to the owner taking the action but to the community to whom the money was owed. The owner could only claim reimbursement for the cost of making the claim.
On the contrary, if the ruling goes against an owner who has taken it upon themselves to act on behalf of the community then that owner is solely responsible for the costs and consequences of their actions and nothing can be claimed back from the community. Whatever the intentions of the owner, well meaning or not, it must be understood they are acting on their own .
With this in mind the law permits even a single owner to defend their community regardless of the opinions of other owners, the committee or the President, but if they are found wrong and the court does not rule in their favour then the risk is theirs. So be careful when acting alone on behalf of your community and look long and hard before you leap.
As usual,
We at Intercala Administration strongly suggest you always seek proper and competent advice in all matters regarding the law.
Taking action in defence of your community
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 April 2012
There may be situations within a community where action should probably be taken to protect the best interest of your community but for some reason it does not happen . Often the reasons why not are quite transparent, the culprits are perhaps friends of the President, the culprit is the president or someone with influence has something to gain from no action being taken. The situations are often very familiar, an owner claims part of the community for themselves, a debtor goes continually unchecked, changes are made to a property that are not in keeping with the rest of the community or even a combination of all these.
Whatever the reason, the Law of Horizontal Property makes provision for action to be taken by an owner or owners, other than the President. In such cases there are several lines of approach, wait until the annual general meeting, call an emergency general meeting( EGM) to reproach the offender and ask them to mend their ways and right the perceived wrong, propose that the community take legal action to force the same or take individual legal action.
If due to perhaps self-interest, the President procrastinates and refuses to call an EGM then the owners may approach the community administrators directly and ask to hold an emergency general meeting. Community administrators are not empowered to just convene a general meeting at the drop of a hat, that is not their prerogative. The law requires that they are approached by owners that represent at least 25% of the community. In Spain every community is divided into shares, the total of which must equal 100%, and each property is attributed its percentage share (quota). For example, in a community of 20 separately-owned properties each with an equal share, then a minimum of 5 owners would be needed to make up the required 25% to call a meeting. If this is the case then the meeting may go ahead with or without the Presidents blessings. Clause 16.1 of the Law of Horizontal Property is quite clear on this.
Once the meeting is under way then things can proceed in the normal fashion but if the meeting fails to materialize or the community still does not act the Law of Horizontal Property provides the possibility for an owner to take individual legal action but there are consequences depending on the outcome.
If the court rules in favour of the owner taking an individual action. For example, making a claim against a debtor for unpaid community fees then the money paid in court would go not to the owner taking the action but to the community to whom the money was owed. The owner could only claim reimbursement for the cost of making the claim.
On the contrary, if the ruling goes against an owner who has taken it upon themselves to act on behalf of the community then that owner is solely responsible for the costs and consequences of their actions and nothing can be claimed back from the community. Whatever the intentions of the owner, well meaning or not, it must be understood they are acting on their own .
With this in mind the law permits even a single owner to defend their community regardless of the opinions of other owners, the committee or the President, but if they are found wrong and the court does not rule in their favour then the risk is theirs. So be careful when acting alone on behalf of your community and look long and hard before you leap.
As usual,
We at Intercala Administration strongly suggest you always seek proper and competent advice in all matters regarding the law.