We have a rather syrupy community of owners, with four separate blocks totalling 150 apartments. Is is legally possible for one of our blocks to separate itself from the larger community, or make four separate communities, and what things need to be put in place for this move?

We have had problems at the AGM with the new president, and would like to know the legal requirements to separate. We understand that we foreign owners (most in two of the blocks) have different requirements from many of the Spanish owners who are at the complex much more often that the foreign owners.

If this is not possible, does anyone know the rules required by the administrator when sending out invitations to the AGM, or the lack thereof to some foreign owners who are never in Spain during August for the AGM? Also the rules for post-meeting refusal to accept proxies that were presented at the meeting but later refused because they lacked an actual signature. These were sent directly to one of the owners by e-mail (a system the administrator uses for inviting to meetings and sending out invoices for community charges still due and unpaid) but neither the administator nor president tried to contact the owners after the meeting to confirm that the proxies were actually valid—they were just refused post-meeting.

I would love to get an informed opinion on these matters as we feel as though we are being disenfranchised.

Great forum, by the way.

Hi.
This sort of thing is best taken to an Administrador de Fincas. They know the law about this. I believe it is possible to separate a block from the other blocks under certain conditions, but I don’t know how it is done. It is not a bad idea if the community as a whole is being problematic.

The administrator has the obligation to make sure the AGM invitation is sent out to everyone, according to the rules laid down by the community. If the community allows e-mail advice, then that is fine. He is not obliged to ensure their receipt, unless the community insists on certified post, which could be done by passing a motion at the AGM.

It is up to the sender of the proxy vote to make sure it is signed and in order. The administrator acted correctly in your example. Usually, a proxy vote is sent to another property owner to deal with. Sending it direct to the administrator is not a good idea for this very reason.

One other point, in case it is useful. In an AGM vote, if you feel strongly against an item, you can insist that your “no” vote is registered in the acts of the meeting. It does not do anything at the time, if you are out-voted, but it does restrict certain responsibilities later if there are any comebacks over the vote (such as costing more than originally planned). It also prevents the decision from being registered as “unanimous”, which can be important for some basic rule changing decisions. It can allow you to block a far reaching change not apparent in the original phrasing of the motion. Proxy “no” votes can likewise be registered.

Algrif

Thanks for your reply Algrif.
I understand your mention of the fact that all proxies should be signed to be valid. My problem is that the proxies were presented at the AGM after having received them by email from foreign owners, and were accepted and counted. I even had one who texted on my mobile that they wanted me to represent them, and a member of the board and adminstrator together accepted them, but refused a few who had not paid their dues. Now, three months later, an important point that we “won” at the AGM by about four votes, ie not to reduce the annual fees because the whole complex facade is a mess and needs lots of work, has been overturned by the now non-acceptance of the proxies that were sent by email but without an attached tif, jpg signature file. Is there not a clause which mentions that the proxies can be refused only at the meeting and not later? I could then have gotten the proxies in question to send their signatures directly to the administrator if they were in doubt of the validity. Instead in the minutes there is a mention of the proxies which “Mrs——says she has authority to represent”. Casting aspersions—-
If there is no info about this, thank you for your kind reply nevertheless.
I will be scouting the law, page by page, line by line, to find some mention of this, also of the possibility of dividing our block away from the whole.

Hi.
We are moving into areas that need specialist help. A lot depends on what the community rulings state. But I can imagine that there would probably be a need for a signature for a proxy vote to count. Normally, due to overwhelming yes or no voting, nobody bothers to check. But where there is a 4 vote majority, the minority will go through this kind of stuff with a fine-toothed comb. And, for much as the committee might accept a text proxy, or whatever, at the meeting, it doesn’t make it any more “legal”, if the community rules insist on a signature. Those votes would be discounted later. BTW, it is quite normal that late-payers lose the right to have their votes counted. You could also check that these criteria have been applied to the “opposition” votes too! You might just pull something out of the fire there!
One problem you have is that legally votes cannot be added after the AGM has finished, only subtracted because of point of order (as is the case with an unsigned proxy, it would seem). This means that it would be pointless to try to rectify an unsigned proxy, as the vote could still not be counted. At the risk of repeating myself, proxy voters should send their votes to a friend who lives in the community, so that the friend can check it over and rectify this kind of omission and any other mistakes before the AGM date. The Administrator is not going to do this, I’m afraid.

Hi Skippy, I’m Presidente de la comunidad since 2002 😊 and accept to renew every year only because of problems similar to those you mention. And my neighbours are delighted to renew me for the same reason.

Unfortunately this matter in Spain is ruled by the Ley de la propriedad orizontal , a rather old and not very clear law that permits an awful lot of misbehaviours, especially from the administrators. Notwithstanding, there are a few things you should know:

1- the administrator has the obligation to inform in due time (meaning at least 2 weeks in advance) all neighbours when calling an AGM. Since 2005 (or earlier ... I never remember the correct date) e-mails are currently accepted by the Spanish Court, provided there is a confirmation of receipt ... but if this means of communication was NOT approved by the majority of neighbours during a regular AGM .. I’m afraid it is NOT valid. So I suggest you to check it out.

2- Those owners who cannot attend the AGM and have not given a delegation to others to represent them, have 1 months from the date of receipt of the Acta de deliberaci?nes de la Junta de vecinos to question and/or oppose what was decided by the participating owners. Nevertheless, I’m afraid that a mail or even a registered letter is not sufficient: to have the resolution rectified (unless you can prove it’s illegal, for example) you’d have to take the case to Court to block it.

3- As for your question about separating the various blocks ... it is usually the builder/promoter (never remember which one ... sorry), when he registers the building and asks all relevant permits etc., who decides if the blocks must be considered 1 whole entity or 4 separate ones and this is usually specified in the Estatuto of the building. If in your case the building was declared as a whole one ... you can still obtain to separate the administration of the various blocks, provided that ALL the owners agree to it. In fact Spanish law specifies that only the total number of owners involved can decide to change the Estatuto : if only one disagrees, there is nothing you can do. In case it was declared as 4 separate blocks, you’ll need the agreement of ALL the owners of the relevant block/s during the next AGM (please see point 4-).

4- In case you can legally prove (with sound legal documents) the misbehaviour of the administrator, you can present a formal accusation at the local Juzgado, advising all owners in writing and inviting the Presidente de la comunidad to call an extraordinary meeting to choose a new administrator (each owner can present an administrator)

5- In case you can legally prove the misbehaviour od the Presidente de la comunidad you should produce such documentation during the next AGM, and he’ll be replaced. In compliance with the Spanish law every owner is obliged to be President for 1 year. Other option if you have no proof of misbehaviour is to find somebody you like, make sure you can count on the votes of the majority of owners, and convince him to propose himself as President.  😊

Hope I’ve been helpful ...  😊

Thanks Expatriator
A very comprehensive reply. Yes, some of the problems you mention seem to be answered now. I was afraid that we might need the whole 100% of the block, but we can give it a try. I feel for the president, because I dont think he is trying to be difficult, he is just a control freak. Combine this with quite a few of the owners who seem to have a good portion of misaprehension concerning us “foreigners who rent out our apartments in the Summer” then you have a recipe for misunderstanding. We have other needs than those who can visit every weekend—especially concerning live-in janitor, effective maintenance on the building etc. Also the need for invitations in reasonable time before the AGM.

I do have just one more question, if I can impose again.
You mention in 4. that the owners have one month from the date of receipt of the minutes to oppose, but is there a need for confirmation of receipt of the minutes?I have spoken to some owners and they have neither received invitations, nor minutes of the latest meeting. Is there a clause about this?

But thank you again for your reply.

skippy - 29 November 2008 07:52 PM

I do have just one more question, if I can impose again.
You mention in 4. that the owners have one month from the date of receipt of the minutes to oppose, but is there a need for confirmation of receipt of the minutes?I have spoken to some owners and they have neither received invitations, nor minutes of the latest meeting. Is there a clause about this?

 

No, there isn’t. I suppose the reason is that such receipt, which can be used as proof in Italy and from what you say I guess in UK too, are not accepted in Spain. Here, the only valid document is the burofax. If you want to send some official letter thinking you might need to use it in Court, you’ve to go to the Post Office with the original copy of the letter. The’ll send it on your behalf, and after a few days you’ll get from the post office an official receipt with all the data concerning your letter and the receiver. The problem is that the service is rather expensive and cost arounf 7 euros for 1 page.

Your question makes sense though ... I had quite a few hard discussion with my administrator, and when I lost my patience and explained I was going to submit the matter to the other owners, I finally obtained that he stopped sending minutes, letters or any sort of documents with a prior date, sometimes even a month or more. To testify about the eventul date of receipt of the minute you only have the word of other owners. In any case, if you feel something’s wrong, you’d better start complaining immediately.

Fate

P.S.: administrators usually keep a mailing list for each building they administrate. You and all owners that didn’t receive either invitations or minute of the AGM should have it specified in the next AGM. You can do that either attending the meeting, or giving a letter to someone who’ll attend, together with your delegation. You could do it also by post ... but unless you live in Spain and are prepared to send a burofax, I’m afraid that your letter might easily get ... ‘lost’ and wouldn’t solve anything.

Thank you again Fate. Great to get feedback from those “in the know”.

Fate_06 great to see you know about this and again thanks from me and every one that look at this post

i live in Spanish comunidad and it old block with no lifts , we all fit here and i get on with all here , but the germanys LOL , most block here is holday for the spanish that liive 30 - 50 km away so real the all year Residents keep eye whats going on , the area we in is like big family here and few off the summer Residents are teachers and set up classes and activities for young and old here , the ground are keep by use few hours on Satarday , (not go with hang over ) Are car park be come big problem in Aug time as we dont have all the spaces but we work that out by double cars , and long list what happen here my Neighbors are from Sweden and and come few times ayear

jurdyr - 29 November 2008 11:25 PM

Fate_06 great to see you know about this and again thanks from me and every one that look at this post

i live in Spanish comunidad and it old block with no lifts , we all fit here and i get on with all here , but the germanys LOL , most block here is holday for the spanish that liive 30 - 50 km away so real the all year Residents keep eye whats going on , the area we in is like big family here and few off the summer Residents are teachers and set up classes and activities for young and old here , the ground are keep by use few hours on Satarday , (not go with hang over ) Are car park be come big problem in Aug time as we dont have all the spaces but we work that out by double cars , and long list what happen here my Neighbors are from Sweden and and come few times ayear

In compliance with Spanish laws and local regulations, each flat owner owns as well a small portion of the community places i.e.: the garden, the roof (if it’s a terrace usually used for tending laundry) etc. This does not mean that anybody is entitled to use the common areas as he pleases. In your case ... did the comunidad de vecinos authorize the use of the parking area for those activities, in a regular AGM? If they didn’t I’m afraid your neighbour is not entitled to dispose of that place the way he’s doing and anybody can complain to the administrator and ask that the situation is settled back to ‘normal’.

Back again with my Comunidad problem.

I have just been told by the President that about 14 votes that I had presented at the AGM (as proxies) were disallowed by the President according to the law about proxies without signature. What he told me was that he (acting also in his capacity as Secretary) selected out votes that were presented without an attached proof of sender. They were sent to me by e-mail and I only printed out the actual proxy (word doc or pdf) not the message to me, which was not written in Spanish in any of the cases. Is this legal?
I understand that the law says we cannot allow proxies without signatures (does this mean that scanned-in signatures only are allowed, or could this be a typed signature from the owner?—which is how some of them sent their proxies since they have no way of scanning in on very short notice) but I do not understand that the President (or Secretary) can decide what is to be allowed and what is not. Either only with signature or not—not some with and some not.

Anyone have any ideas?

skippy - 11 December 2008 07:26 PM

Back again with my Comunidad problem.

I have just been told by the President that about 14 votes that I had presented at the AGM (as proxies) were disallowed by the President according to the law about proxies without signature. What he told me was that he (acting also in his capacity as Secretary) selected out votes that were presented without an attached proof of sender. They were sent to me by e-mail and I only printed out the actual proxy (word doc or pdf) not the message to me, which was not written in Spanish in any of the cases. Is this legal?
I understand that the law says we cannot allow proxies without signatures (does this mean that scanned-in signatures only are allowed, or could this be a typed signature from the owner?—which is how some of them sent their proxies since they have no way of scanning in on very short notice) but I do not understand that the President (or Secretary) can decide what is to be allowed and what is not. Either only with signature or not—not some with and some not.

Anyone have any ideas?

The president is right: if a document is NOT signed, it’s worthless. And it must be the original one. No mails, pdf, doc, neither scanned documents: ONLY original ones.
The only way to vote if you cannot attend the AGM, is to sign and send the ORIGINAL proxy by post to somebody who’ll attend, as I already explained.
If you think of it, it makes sense: it’s intended to prevent people from producing fake proxies ...

Hi again, and thanks
I have probably explained myself poorly. I understand that a signature would be necessary. My question is: can the president decide to include only those proxies that have an attached address which says where the e-mail proxy comes from? A signature is not the deciding factor. If the law says that an original signature is necessary, fine, but if the president can decide himself which method is valid then something does not appear to be correct.
I hope I am explaining myself clearer here.

President and administrator MUST comply with the law.
A paper, proxy or whatever document that is not an original signed copy can only be read and mentioned for records ... unless it was approved in another AGM by the majority of owner that prsident and/or administrator could behave the way you describe. If there’re no records (must go back until the first AGM) then the President behaviour can be questioned and eventual votation might result nul. But to do so ... you must do what I explained in point 4 and 5 of my previous post of November 29.