The owners’ association in Spain Due to the combination of individual ownership and common ownership, it must be ensured that the often widely differing interests of the individual owners can be reconciled. This is achieved by creating a transparent and democratic decision-making body. This is known as the owners’ meeting.
The coexistence of individual ownership and common ownership is the essential feature of residential property law. However, the combination of these two special forms of ownership also means that the individual and collective interests that naturally diverge from one another must be reconciled. This requires a basic organisational framework that, on the one hand, gives every owner a say, but at the same time is equally suited to enabling effective control of all its components as a whole. To this end, the Spanish Condominium Act provides for a number of bodies to ensure that, once a decision-making process has been completed in the broadest sense of the term, the measures agreed upon can actually be implemented. Although the Act describes various bodies, which we will explain in detail below, the legal requirements are optional in two respects. On the one hand, in addition to the bodies described by law, new, additional bodies that are not expressly provided for may be created based on the individual needs and decisions of each community. On the other hand, apart from dispensable offices, several offices may be held by one office holder. Only two community bodies are indispensable. These are the president of the community and the owners’ meeting.
View of the Valldemossa valley (Mallorca) The Spanish owners’ meeting The owners’ meeting is the highest body of the community. All other bodies can be appointed and dismissed at this meeting.
The owners’ meeting can be described as the highest body of the community, as all other bodies – whether expressly provided for by law or not – are subject to its decisions and must, in principle, act in accordance with the resolutions it adopts. To illustrate this, the owners’ meeting could also be described as a kind of owners’ parliament in which each owner of a separately owned property has a seat. The nature of the property owned (separately) is irrelevant for the retention of this seat.
It is therefore irrelevant whether the property is a business premises or a car parking space, or whether it is a 5-room flat or a 40-square-metre apartment. All owners of separately owned elements are members of the owners’ association solely on the basis of this characteristic and are therefore entitled to participate in the owners’ meeting. Although the term ‘owners’ meeting’ seems to suggest that a meeting of all owners is required for a quorum, such participation by each owner is not necessary. The rights of absent owners are nevertheless protected. The legislator has decided instead to require different majorities or even unanimity, depending on the subject matter of the resolution, so that individual resolutions can be validly adopted, and to assume a fictitious approval with regard to certain matters subject to a vote (Article 17.8 LPH) unless the owners who were absent from the meeting exercise their right to vote (in favour or against) within the statutory period of 30 days from notification of the voting results of the owners who participated in the meeting. This ensures that important decisions cannot be made solely by the participants of the owners’ meeting and, at the same time, ensures the functioning of the community. However, there is a special feature with regard to the actual meeting of all owners. It is possible to waive the otherwise required invitations to the owners’ meeting if all owners meet in person or through representatives to hold a meeting.
Boat anchored in the inland sea ’Mar Menor” (Murcia) Powers of the owners’ meeting The powers of the owners’ meeting are described in Article 14 of the LPH.
These include:
the appointment or election and dismissal of the officers of the community, such as the president, secretary, administrator and all other officials appointed by the community. Decision on the estimated income and expenditure statement or the budget, as well as the associated budgets. Decision on the acceptance of cost estimates. Decision on the execution of any structural repair measures, whether of an ordinary or extraordinary nature. Right to be notified of urgent measures ordered by the administrator. Adoption and amendment of the community rules. Adoption and amendment of the house rules. Necessary or appropriate measures regarding all other matters of common interest. As can be easily seen from the last point listed under Art. 14 (e) LPH, this list is merely an illustrative description. Basically, it would therefore have been sufficient to state that the owners’ meeting has decision-making authority on all matters of importance to the community. The purpose of this specific list is not so much to provide an exhaustive description of the rights of the meeting as to express the essential powers that are required for the owners’ meeting to perform its tasks. The above list should therefore not be understood as restrictive, but rather as a reminder of the recurring or most important and most frequent main tasks. The limits of the decision-making power of the meeting are therefore to be drawn where the transition between the exclusive property of the individual (separate property) and the property of the community (common property) lies.
Types of meetings There are two types of meetings: ordinary meetings on the one hand, and extraordinary meetings on the other.A distinction must be made between two types of owners’ meetings. Ordinary meetings on the one hand, and extraordinary meetings on the other. Even if the terms ordinary and extraordinary suggest a certain degree of regularity or irregularity, which to a certain extent is justified, as we will see in a moment, the causal distinguishing feature between these two types of meetings is solely the subject matter of the meeting or the reason for it. If, among other things, the budget for the coming year and the final accounts for the previous year are decided at these meetings, they are ordinary meetings. If only other topics are put to the vote, these are extraordinary meetings. The subject matter of the meeting alone is therefore responsible for its classification as ordinary or extraordinary. However, this classification has an impact on the requirements (deadlines) that must be observed when convening the meeting, which is why the relaxed requirements for extraordinary meetings ultimately lead to a certain degree of irregularity. The more scheduled nature of ordinary meetings is further emphasised by the following circumstance: due to the fact that budgets and final accounts are sensibly adopted and maintained on an annual basis, the law requires that at least one ordinary meeting must be held each year to enable the community to be managed in a planned manner. In addition to this one annual meeting, which must be held at least once a year, several other ordinary meetings may be held during the year, each of which must deal with the topics described in order to be classified as an ordinary meeting.
Of course, it only makes sense to hold an ordinary meeting once a year. There are no minimum frequency requirements for extraordinary meetings. Rather, they are convened according to the specific needs of each community. Despite the legal requirement to hold an annual ordinary owners’ meeting, it is of course possible to violate this requirement. However, there is no standardised penalty, such as a fine, for such violations. If no one is bothered by the cancelled meetings or takes any action against them, nothing further will happen at first. In view of his passivity, the president of the owners’ association can only be requested by the owners to convene the relevant meeting. If the regular meetings are not held due to the president’s inaction, he may be held personally liable. This would be the case, for example, if, due to the lack of meetings, no provision is made for sufficient reserves to pay the association’s liability insurance. If an accident occurs in this context, the president could be held personally liable in the absence of insurance cover.
At least one ordinary meeting must be held each year. Despite the legal requirement, there is no immediate sanction if the annual meeting is not held.
In addition to the need to draw up the annual budget and hold the annual general meeting for this purpose, there are other reasons for holding a meeting at least once a year: The organs of the community are elected regularly (unless otherwise specified in the statutes) for a term of one year. At the same time as the mandatory annual preparation of the budget, the holding of the ordinary annual meeting therefore provides an opportunity to hold new elections and fill the offices. Since other items may and are dealt with at an ordinary meeting in addition to matters relating to final accounts and budgets, it may happen that a community does not need to hold any extraordinary meetings at all and only holds ordinary meetings. As we have seen, there are only restrictions on the topics that may be discussed at extraordinary meetings, namely the exclusion of decisions on the approval or adoption of final accounts and budgets.
The distinction between ordinary and extraordinary meetings is important for several reasons. Among other things, the notice periods to be observed differ.
However, the classification as an ordinary or extraordinary meeting is also important with regard to the different notice periods to be observed in each case. In distinguishing between the two types of meetings and their requirements, the legislator has primarily sought to ensure orderly economic conditions and to protect the interests of the members of the owners’ association in participating in the economic management of the association. While ordinary meetings require at least six days’ notice, extraordinary meetings must be announced as early as possible in accordance with Art. 16.3 LPH so that all those entitled to attend can take note of them.
Bay at the foot of Santa Barbara Castle (Alicante) At a glance: Differences between extraordinary and ordinary meetings Differences: Ordinary meetings Extraordinary meetings Subject: Final accounts and budgets, as well as all other conceivable topics No final accounts and budgets, but otherwise all other conceivable topics Notice periods: At least six days in advance in good time so that everyone can take note Frequency: at least once a year – as often as necessary no minimum frequency – as often as necessary
Notice of meeting [pullquote]In addition to the general rules on giving notice, it should be noted, particularly in the case of smaller communities, that if all owners are aware and agree, the notice period may be waived if they all come together and agree to hold the meeting.[/pullquote]
An effective meeting requires compliance with the applicable notification requirements. Apart from the six-day notice period for ordinary meetings and the period sufficient for all owners to be informed of extraordinary meetings, there is, strictly speaking, a third way, already mentioned above, to achieve an effective meeting. This consists of all members of the owners’ association coming together. If all members gather and decide to hold a meeting, a valid meeting can take place even without a special notice of meeting. After all, the purpose of the notice of meeting rules is simply to give all members the opportunity to participate by informing them in good time. If all members are aware of the meeting and arrive at the same place, there is no reason to declare such a meeting invalid.
Platja D’Aro (Costa Brava) – Catalonia Convening of the meeting The owners’ meeting shall be convened either by the president or by 25% of the owners or by a group of owners representing at least 25% of the quotas.
The meeting shall be convened by the president of the community in accordance with Article 16.2 LPH. However, especially in larger communities, the actual invitation to the meeting is usually issued by the administrator (acting as a service provider), who informs the members of the community of the planned meeting and provides them with all relevant information. In such cases, the president merely signs the notice. In addition, the president should review the content of the notice, which is regularly drafted by the (paid professional) administrator, as it is ultimately the president to whom the other owners express their wishes for the inclusion of individual agenda items in accordance with Article 16.2.2 LPH. Except on the initiative of the president, meetings may also be convened in accordance with Article 16.1 LPH at the request of at least 25 per cent of the members of the community or a group of owners representing at least 25 per cent of the participation quotas. If the organisational structure of the community provides for and fills the office of vice-president, the vice-president may also convene the meeting if the president is unable to do so.
Alcúdia beach in the Balearic Islands What formal requirements must be observed when convening the meeting? The meeting must be convened in writing in accordance with Article 16.2 LPH in conjunction with Article 9.1.h.) LPH. This should in any case be the logical conclusion from the wording of Article 9.1.h.) LPH, which first and foremost requires that notifications be sent to the address designated by the owner and located in Spain. An older version of the Spanish WEG also expressly referred to the written form requirement. However, there are isolated decisions which take the view that it is only important that the owner actually became aware of the summons, which is why the written form is not mandatory. In view of the need to protect owners and relevant decisions of the Tribunal Supremo, however, it does not seem tenable to waive the written form requirement altogether. Based on the requirement of written form, the question often arises in practice as to whether notices from the community, such as the invitation to the owners’ meeting, must be made in writing and in such a way that proof of delivery can be provided. The law does not provide any guidance on this point. Therefore, no special proof of delivery is required in the first instance. Nevertheless, we agree with numerous authors that there is often no way around the use of special delivery methods. The burden of proof that the invitation was sent to all owners lies with the sender. The application of Article 217 LEC leads directly to this conclusion. Particularly in cases where measures are to be taken against individual owners (e.g. legal action to recover unpaid contributions, legal action for disruptive behaviour, etc.), two things become apparent: The owners against whom the intended measures are directed have a heightened interest in the actual receipt of the summons, which is why a delivery method that offers increased guarantees regarding actual delivery is particularly appropriate for their protection. At the same time, however, in such cases there is also an increased risk that the owners concerned will falsely claim that they did not receive the summons in order to subsequently successfully challenge the decision taken against them, which is why the community should be particularly keen to choose a method of delivery that allows proof of actual delivery.
Puerto Banús (Andalusia) Place of meeting [pullquote]In theory, the meeting could be held anywhere, as long as the location does not already pose an obstacle for the average owner.[/pullquote]
Furthermore, the notices must be delivered to the members of the owners’ association at the location described in Article 9.1.h.) LPH. To enable this, the members are obliged, in accordance with Article 9.1.h.) LPH, to provide the secretary of the association with a valid address in Spain to which the necessary notifications can be sent. In the event that a member fails to comply with this obligation, summonses and notifications of any kind may be sent to the address of the property that establishes membership of the community, i.e. to the address of the specific element of individual ownership, as this is the location with the closest logical connection between the member of the owners’ association and the association itself. However, if no delivery address in Spain is specified, the law does not only provide information on the local determination of the alternative place of delivery. The law also states that delivery of the summons or notification to the resident or user of the separately owned property located in the community constitutes effective delivery. In such cases, notification would therefore be fully effective even if the recipient is not a member of the owners’ association. If, for example, the property has been rented out, delivery to the tenant would therefore already constitute effective service on the member of the owners’ association. Whether and when the summons was actually handed over to the addressee by the user or occupant is irrelevant for this fiction of service. The summons is deemed to have been received.
When it comes to the question of to whom the summons must be delivered in order to assume that the summons obligation has been properly fulfilled, it should be noted that delivery to the occupant of the separately owned elements may be sufficient. The individual cases described here must be studied carefully.
In the previous paragraph, we used the terms ‘resident’ and ‘user’ of the property to describe who could effectively receive notifications from the owners’ association in accordance with Article 9.1.h.) LPH. For the sake of completeness, it should be noted that we used the terms “user” and ‘resident’ to describe the most common practical cases. In the case of properties not used by their owners, the residents are usually family members, friends or tenants. However, the wording of the Spanish provision refers to ocupante, the translation of which as ‘occupier’ may evoke false associations in the reader’s mind and will therefore be explained in more detail below. The much broader definition of ocupante (squatter) has already been dealt with by the courts on several occasions. For example, the delivery of the summons to the tradesmen working on the property and entrusted with renovation work was deemed effective, as the court ruled that these persons fell within the category of ocupante (squatter). Even if this is certainly not the norm, it is clear that the law does not impose any special requirements on the person in the property, which is why effective service of the summons can also be deemed to have taken place if the property is not rented or has been made available to acquaintances.
If it is not possible to effect service in the manner described above, the last resort is to post the notice. The notice may then be posted on the notice board or in another clearly visible area of the community set up for this purpose. From a formal point of view, it should be noted that the notice must be dated and the reasons for taking this measure must be stated. The notice, issued with the knowledge and approval of the president, must be signed by the secretary.
The types of delivery described above are not alternatives to each other, but are rather subsidiary and therefore have a hierarchical order prescribed by law. As the law itself clearly states in Article 9.1.h.) LPH, posting is only permissible if the other attempts at notification have not been successful.
Despite the legal requirements, case law has allowed numerous exceptions to the general requirements for enabling a summons to be made via the notice board. Often, this is ultimately the only way to still be able to hold a proper owners’ meeting.
There are certainly cases in which, due to special circumstances, it is questionable whether a notice posted directly on the notice board is sufficient. Individual court decisions seem to allow exceptions to the general rule in special cases. If, for example, an owner attempts to make other forms of delivery impossible through his behaviour, or if the president or administrator refuses to disclose the addresses of the owners to those members who are organising a meeting on their own initiative (as we have already seen, a group of owners representing at least 25% of the participation quotas or at least 25% of the owners or votes, may demand that a meeting be convened), the rule laid down by law can quickly lead to unintended obstacles. In the cases described, exceptions to the general notification rule have therefore already been permitted, and direct notification by notice board has been deemed permissible as a substitute. Despite the exceptions mentioned, however, special cases should be handled with the utmost caution. Even though there are numerous relevant court decisions, it should not be forgotten that the specific details of each individual case and the personal assessment of the judges based on these details play a significant role. A general exception cannot be derived from this.
The above results in the following hierarchy regarding the location at which notices of owners’ meetings are to be posted:
At the location notified to the community by the owner (in Spain). If no information is provided by the owner, at the address of the separately owned property. On the notice board (dated and stating the reasons for the impediment). View of the port of Ibiza (Balearic Islands) Notice periods for owners’ meetings Article 16.3 LPH specifies the minimum notice periods that must be observed between the notice of the meeting and the meeting itself. The law distinguishes between different types of meetings with regard to the applicable notice periods.
Notice period for ordinary meetings According to the law, ordinary meetings must be announced at least six days in advance. It should be noted that this period does not begin on the day on which the invitation is sent, but only on the day of delivery, i.e. the day on which it can actually be taken note of, whereby the day of receipt itself is not counted. If delivery was attempted by registered letter and failed due to the absence of the recipient, the delivery attempt alone can trigger the start of the period (on the following day) based on the theoretical possibility of knowledge. In this case, the community would have carried out the actions falling within its area of responsibility. The fact that the owner does not collect the letter or only collects it much later does not change the start of the period. Even if compliance with the specified minimum period is sufficient, it seems more than desirable not to use the entire period. The basic idea of democratic decision-making can only be taken into account if every owner has sufficient time to prepare for the meeting – and this includes, in particular, agreeing on a date.
Notice period for extraordinary meetings In the case of extraordinary owners’ meetings, the period between the notice and the meeting must be long enough to allow every owner to take note of it in good time.
Unlike ordinary meetings, the law does not specify a specific notice period in days for extraordinary meetings. Instead, it requires that the notice be given as early as possible so that all addressees can take note of it. No upper or lower time limit in days is deliberately imposed. This is to take into account the fact that most extraordinary meetings are characterised by a certain urgency of the agenda items discussed at them. Otherwise, the votes on the items dealt with there could wait until the next ordinary meeting anyway.
Apart from the notice periods, the other requirements for ordinary and extraordinary owners’ meetings are practically identical.
The fact that all owners must be invited to extraordinary meetings in the general manner described above is intended to ensure that, despite any special circumstances that may exist, no instrument is created that would allow decisions to be taken that would never have been adopted in an ordinary meeting due to the actual majority ratios in the community, thereby disregarding the general interests of the community and the rights of the owners. Although sufficiently timely advance notice appears desirable, particularly in the case of decisions of outstanding importance, and one should be inclined to expect particularly timely notices in such cases, special circumstances may also justify notice at short notice. Gallego Brizuela, for example, ruled that in the case of a vote on the costly repair of a heating system in winter, despite the measure being significant in two respects (cost and necessity), short notice was nevertheless justified. Although this measure may be costly, short notice should still be permissible in this case. However, the situation could be different if there is no urgency regarding the measure to be voted on or if there is no actual necessity. The purposeful convening of extraordinary meetings (e.g. to make it difficult for some owners to attend) could, in the latter cases, justify a challenge to the decisions taken at the meeting by all those owners who were unable to attend the meeting due to the short notice. However, the actual possibilities for abuse are relatively low if the owners who have been overlooked are aware of their rights. In the case of resolutions requiring unanimity or a qualified 3/5 majority under Article 17 LPH, the absent owner may exercise his voting right within the statutory 30-day period (counted from the date of notification of the provisional voting result adopted by the owners present), even after the meeting has been held. Individual items of the resolution also require the consent of the owner who is particularly affected. Furthermore, the owner may exercise his right of appeal under Article 18 LPH.
Bay of Palafrugell (Catalonia) Special features of summonses via the notice board [pullquote]The relevant deadlines must also be observed for summonses via the notice board[/pullquote]
Since in some cases it may be unavoidable to notify individual owners via the notice board, it must be noted that the deadlines described above also apply here (six days for ordinary meetings and in good time for all owners to take note of the notice for extraordinary meetings).
[pullquote]This applies to both ordinary and extraordinary meetings. If it is not possible to deliver the notice, it may be posted on the notice board as an alternative in both cases.[/pullquote]
However, the law stipulates in Article 9.1.h.) LPH a.E. that the deemed delivery of notices posted on the notice board only takes effect three days after the notice is posted. This means that there must be at least nine days between the posting of the notice and the holding of the ordinary meeting. Three days so that the invitation can be assumed to have been received and a further six days so that the deadline specified in Article 16.3 LPH is deemed to have been met. For invitations to extraordinary meetings, the three-day period must therefore be observed so that the invitation is formally classified as delivered. How long must be waited after this before the invitation can be deemed sufficiently timely is determined by the criteria already outlined above. Regardless of the type of meeting being convened, it must always be noted that the invitation may only be posted on the notice board as a subsidiary measure if the other methods of delivery provided for by law have not been successful.
Isla Plana (Costa Cálida) – Murcia Contents of the summons The invitation may well specify two dates for the meeting, namely the first and second dates. This means that a second invitation does not need to be sent if not enough owners attend the first meeting.
The content of the invitation must include, among other things, the agenda, the place, the date and the time at which the meeting is to be held in the first and, if necessary, in the second convocation.
Depending on the individual circumstances on site, it may be the case that an owners’ association does not have a suitable meeting room of its own. Even if communal gardens or green spaces are available, these may not be suitable for holding a meeting due to their size or structure. Space problems in large communities also mean that it is not appropriate to use the flat or house of an individual member to hold the meeting, even if a few volunteers are willing to do so. Often enough, a suitable meeting place has to be found. Regardless of the location, as soon as meetings leave the community premises, the question of possible costs and necessary travel distances arises. Some owners may object to the expenses that may be incurred, while others may consider that the chosen meeting place is too far away from the community. Even if the question of costs can be resolved by using municipal facilities or by skilfully selecting private providers – in practice, a restaurant suitable for the purpose is often chosen, which allows the use of individual rooms in exchange for the catering costs incurred – the distance that may have to be travelled can actually cause problems.
It makes sense to hold the meeting in the owners’ association itself or to rent suitable premises in a nearby restaurant if the property manager does not already have suitable premises available.
There should certainly be no objection to holding the meeting in the immediate vicinity of the property, as the law does not stipulate anywhere that the meeting must be held on the property itself. Furthermore, as explained above, the lack of space described above may make it more than just practical to use suitable premises outside the property. However, while some voices even advocate allowing owners’ meetings to be held in neighbouring municipalities, others are so restrictive that they demand that even meetings within the same city should not take place too far from the property. Although these positions may seem incompatible at first glance, they are based on a common consideration: holding the meeting outside the community should accommodate the owners and provide the necessary framework. However, it should not create new obstacles. The choice of an alternative meeting place must therefore be aimed precisely at overcoming existing obstacles and not creating new ones. Consequently, in order to assess the suitability of a particular meeting place, it must be examined whether it does not make participation unnecessarily difficult. The specific individual case must therefore be assessed without it being permissible to make generalisations. The nearby conference hall of the neighbouring municipality may thus be preferable to a more distant venue in the same municipality for a community located on the outskirts of the city. It would therefore be unacceptable, for example, to hold the meeting of a community located on the coast in Madrid or even abroad simply because the majority of the owners live in that specific location. Unless, of course, all owners agree to this. The same consideration applies to the time of the meeting. The day and time at which the meeting is held should not constitute an additional obstacle here either. Depending on the individual case, it may be advisable, for example, in the case of holiday properties, it may be advisable to hold the meeting during the typical holiday months so that as many owners as possible can attend, while owners’ associations whose special elements of ownership are predominantly used as permanent residences are better advised to hold their meetings outside the holiday season, when most owners would otherwise be prevented from attending. With regard to the time chosen, care should also be taken to ensure that it does not prevent comprehensive participation and an orderly proceedings. At this point, an attempt could be made to provide a comprehensive list of the most common problems encountered in this regard. Ultimately, however, as explained above, the specific individual case is decisive, which is why this section should rather be understood as an indication of the opportunity to make constructive use of the scope for planning owners’ meetings in this context. Apart from the purely legal classification of the parameters described, it should never be forgotten that the conflicting interests that regularly arise at owners’ meetings already harbour sufficient potential for conflict in themselves. The choice of the venue and time of the meeting should not provide additional fuel for conflict and make cooperation more difficult, but should rather contribute to the smooth running of the meeting. In this sense, holding the meeting in a public place and at the weekend is generally beneficial.
View of a coastal strip of the city of Málaga, in the province of the same name (Andalusia) First and second convocation In order for the announced meeting to be held, in accordance with Article 16.2 LPH, the majority of owners representing the majority of the participation quotas must attend the first convocation of the meeting, otherwise the majority required to achieve the quorum provided for by law will not be present. Since this requirement for the constitution of the meeting quickly becomes an actual, insurmountable obstacle to the management and organisation of the community if the majority of owners or the majority of owners holding the majority of participation quotas regularly fail to attend the meeting, the law provides for the possibility of holding the meeting in a second convocation, in which no such majorities are required for the meeting to be held.
In the second convocation, the owners’ meeting can be held regardless of how many owners or quotas are present or represented. However, it should be noted that this relaxation initially only applies to the attendance required to hold the meeting. With regard to the majorities or number of votes and quotas required for resolutions to be passed, the second convocation only provides relief for those resolutions that require a simple majority under Article 17.7 LPH. Instead of requiring a majority of the votes and quotas of all owners, resolutions that only concern general administrative matters and are not subject to any other majority under Article 17 LPH may be passed at a meeting held at second notice in accordance with Article 17.7 LPH with a double majority of the votes and quotas of the owners present or represented.
[pullquote]In individual cases, it may happen that only one owner attends the meeting. In this case, the question would arise as to whether a owners’ meeting can be held at all under these circumstances. As is so often the case, each of these positions could probably be justified.[/pullquote]
In the special case that only one owner attends the meeting, it would be appropriate to refrain from holding the meeting. Not only is the appearance of a single owner not a meeting in the true sense of the word, but the majorities required by law for the adoption of resolutions also mean that the legislator assumed that several votes would be cast. With only one vote, therefore, no majorities can be achieved, which is why a quorum should be rejected in such cases. The case would be different if the sole owner appearing at the meeting also exercised the voting rights of one or more absent owners. In this case, only one owner would appear at the meeting, but the votes of several owners would be cast.
[pullquote]If the invitation to the first meeting already contains a reference to the second meeting, a completely separate second invitation is not necessary. However, it should be noted that there must be at least 30 minutes between the two invitations.[/pullquote]
With regard to the second convocation, it should be noted that a corresponding formal invitation must also be issued in this case. There are two options for doing this. If the notice convening the owners’ meeting specified not only the time of the first convocation but also the time of the second convocation in the event that the first convocation did not result in a sufficient number of owners and quotas being present, no further additional notice convening the second convocation is required. Both convocations can be made in a single invitation. The law only requires that there be at least 30 minutes between the second convocation and the first convocation, which must be taken into account when drafting and formulating the invitation. Both convocations may, of course, be more than half an hour apart, but the interval of 30 minutes must not be less than this.
In the event that only one convocation was provided for in the invitation and the majorities required for holding the meeting in the first convocation were not achieved, the law stipulates that the second convocation of the owners’ meeting (i.e. the holding of the meeting) must take place within eight days of the meeting that was not held.
In accordance with Article 16.2.4 LPH, there must be at least three days between the sending of the invitation to the second convocation and the holding of the meeting, regardless of whether it is an ordinary or extraordinary meeting and despite the fact that no specific minimum period applies to the first convocation of extraordinary meetings, but rather the possibility of timely notification is taken into account.
In the event that notification of the second convocation is required by means of a notice (i.e. the notice board), the three-day period specified in Article 9.1.h. must be added to the minimum notice period of three days required by Article 16.2.4 LPH 2. paragraph LPH must be added to the minimum notice period of three days required under Article 16.2.4 LPH so that the deemed delivery of the notice by posting can take effect. It is therefore not possible to change the agenda items. It could be interpreted that a new convocation would be a new, so to speak, first convocation of a different owners’ meeting. In this case, however, the minimum requirements for the convening of the meeting (in terms of owners present or represented and quotas) would have to be determined in the same way as for a first convocation. The relaxations applicable to a second convocation would not apply in this context.
Since failure to comply with the obligation to hold the second convocation within the specified eight days is not punishable by law, i.e. the law does not provide for any direct sanctions if this requirement is violated, some authors express their dissatisfaction with this situation. Loscertales argues that there is nothing worse than regulations that appear to be mandatory but do not result in sanctions if they are not complied with.
Although this point of view is understandable, since in the vast majority of cases there are likely to be no consequences if the requirements described in Article 16.2.4 LPH are not observed, it should not be overlooked that those responsible can indeed be held accountable if non-compliance with these legal rules leads to demonstrable disadvantages for the community or a member of the community.
Crystal clear view of the seabed at San Antonio beach (Ibiza) Agenda items for the owners’ meeting Only items that were announced as agenda items in the respective invitation to the owners’ meeting can be put to the vote.
In addition to the location and time of the meeting, which are of organisational importance, the agenda is an essential part of the notice. This allows the owners to find out in advance which topics are to be discussed at the upcoming meeting. Only when they are aware of this are they in a position to decide whether or not it is of particular interest to them to attend the meeting. Even though the LPH has created a democratic collective body in the form of the owners’ meeting, which ultimately requires the participation of the owners and in which only the comprehensive participation of all those entitled to vote promotes the desired result, namely the decisions actually supported by the members, the reality is often different. In large, relatively anonymous communities located in holiday areas in particular, only a small, mostly consistent group of owners regularly attends the meetings. Only when special topics are put up for discussion does participation increase significantly. For this reason alone, the notification of the agenda items by way of the invitation is of central importance.
In addition to the fact that the announced agenda items can influence the willingness of owners to participate, they also serve to prepare those entitled to vote. Depending on the topics up for discussion, individual owners will discuss these with their neighbours in advance and, if necessary, obtain further information or even seek advice. In particular, announcing the agenda items to be discussed also ensures that no surprising issues that have been deliberately concealed are suddenly put to the vote.
The outcome of the vote at the owners’ meeting is not always the only thing that matters. For certain agenda items, the behaviour of absent owners who are entitled to vote must also be taken into account. It therefore often takes more than four weeks to determine the final outcome of the vote. After all, absent owners have 30 days to cast their votes on numerous items. The period usually begins with the delivery of the preliminary results to those present.
If one takes into account that different majorities are required depending on the subject of the vote and that, in certain cases, those who are absent are bound by the voting behaviour of those present or, for example, in the cases referred to in Article 17.8 LPH, must exercise their voting rights within a 30-day period so that their vote is not deemed to be approval of the provisional resolution adopted by those present, it is clear that the correct announcement of the items on the agenda can have a significant influence on voting behaviour and thus on the outcome of the vote. Without a correct description of the agenda items, obstacles to the proper exercise of the owners’ rights would ultimately be created. If votes were actually taken on items that had not been announced accordingly, the decisions taken in this regard at the meeting could be challenged. The announced agenda items constitute the insurmountable framework of the topics to be discussed and the items to be decided upon. In this context, it should therefore also be noted that the agenda items must not only be announced in general terms, but that their description must also make it sufficiently clear what exactly is to be voted on. The obligation to announce the agenda items and to limit the agenda to these items can only serve a meaningful purpose if it is made sufficiently clear at the same time exactly which issues are at stake. The description certainly cannot anticipate the course of the discussion and should not descend into unnecessary detail. However, the obligation to announce the items to be resolved was not fulfilled simply by describing the intended installation of a lift system under the agenda item ‘Vote on changes to common property’. For the same reason, it is not sufficient for an agenda item to be headed simply with the term ‘construction work’ if it is not clear from the further explanations or the overall circumstances and sufficiently clear to all what exactly this work refers to.
A distinction must be made between items on the agenda and items where only questions are asked and general suggestions or requests are made. Such matters may be discussed, but no vote may be taken. The aim is not to agree on matters of regulation through a ‘back door’, but to be able to discuss sometimes trivial aspects of living together in a more informal setting.
In addition to the specific agenda items that vary from meeting to meeting, it is customary for general, recurring items to appear on the agenda. These include the items Lectura y aprobacion del acta anterior (reading and approval of the previous minutes) as the starting point and Ruegos y Preguntas (requests and questions) as the closing item. At regular meetings, the approval of the accounts and the resolution on the future business plan are also added. Particularly with regard to the item Requests and questions , problems can sometimes arise when it comes to determining what may and may not be dealt with under this section. A recurring problem is the misuse of this item to carry out all those votes that could not be classified under the other items on the agenda. However, as the name of this agenda item itself indicates, only general questions and requests should be asked and formulated at this point. Under no circumstances should it degenerate into a kind of catch-all agenda item that allows topics that were not announced to be put to the vote through the back door.
Rocky bay on Tenerife (Canary Islands) Right of owners to determine agenda items [pullquote]Every owner is entitled to put any item up for vote.[/pullquote]
In accordance with Article 16.2.2 LPH, every owner has the right to request that the owners’ meeting include items on the agenda or to request that the owners’ meeting comment on specific topics. To this end, a letter must be sent to the president of the community requesting that a corresponding agenda item be included in the next meeting. As long as the next meeting has not yet been scheduled, implementing such a request should not pose any difficulties. The corresponding agenda item would simply need to be added to the next invitation. However, if the invitations have already been sent out, the question arises as to whether a new invitation with the additional agenda item(s) may be sent out retrospectively to replace or supplement the old invitation. Does the wording ‘next meeting’ in Article 16.2.2 LPH refer to the meeting following the motion or to the meeting not yet scheduled at the time of the motion? In the most common cases, where notices are issued at short notice because they are close to the date of the meeting, we believe that it must be assumed that the original notice cannot be supplemented or even replaced by a second letter. If, for example, there are only five days left until the scheduled ordinary meeting, the statutory notice periods can no longer be met (at least six days, see Article 16.3 LPH), this addition should be permitted, which is why no changes to the existing agenda should be allowed. However, if there are weeks or even months between the delivery of the notices and the holding of the meeting, this question becomes more pressing, as it would undoubtedly be possible to send a modified notice in good time. The wording of the law la siguiente Junta que se celebre tends to imply that it refers to the next meeting (i.e. the meeting that has not yet been scheduled or the meeting following the meeting that has already been scheduled) and not la próxima Junta que se celebre , i.e. the meeting that is closest (as it would otherwise have to be).
Due to the ambiguity of the wording, which leaves room for interpretation, we would like to summarise the various opinions on this matter. There are conflicting views in the literature. Some argue that this right of the individual owner can only refer to meetings to be scheduled in the future. For practical and organisational reasons, nothing else can apply. According to another view, however, this subsequent completion must be accepted in principle, provided that the statutory deadlines are observed and the competent bodies of the community, such as the president and secretary, are prepared to initiate this change – after all, they would be burdened with additional work. In our opinion, there are good reasons to follow the line of argument that assumes that there is no obligation to change the agenda and send out a new invitation for a meeting that has already been scheduled. Nevertheless, the president should be entitled, at his or her discretion, to consider the late proposal after all and to draft a new invitation if he or she is able to comply with the statutory deadlines. He must be able to assess whether the effort involved in sending an additional notice is proportionate to the benefit gained by bringing forward the vote on the requested agenda item, or whether it is reasonable to ask the applicant to wait until the next ordinary or extraordinary meeting.
The chairman’s position may be problematic if he not only considers that the inclusion of the requested agenda item can wait until the next meeting, but also generally refuses to put the requested item up for discussion at any meeting. Although the law stipulates that the chairperson is obliged to consider proposals submitted to him in writing, the law itself does not provide any direct means of enforcement to ensure that this obligation is fulfilled.
Aerial view of the port of Alicante Information about the debtors A common mistake is to fail to specify the debtors of contributions due.In accordance with Art. 16.2 sentence 2 LPH, the summons must also include a list of owners who have not paid the contributions due to the community and are therefore debtors of the same. These owners must also be informed by means of the notice that they are prevented from exercising their voting rights if they have not taken any of the measures described in Article 15.2 LPH. Accordingly, the debts due must be paid off, challenged in court or deposited with a notary or court before the start of the meeting. Otherwise, the owner concerned may attend the meeting but may not exercise their voting rights.
Even though the disclosure of debtors – especially when posted on the notice board and thus immediately visible to outsiders – has often been the subject of controversy, the conclusion can only be that this disclosure is permissible.
There has been controversial discussion as to whether the Spanish WEG could even be unconstitutional in this respect. On the one hand, it is more than questionable whether the withdrawal of voting rights as a sanction is disproportionate to the breach of the obligation to pay the owner contributions owed, and whether a milder measure would not have been more appropriate. On the other hand, the obligation to disclose the names of debtors could raise data protection concerns and even be likely to violate the honour of those affected. These objections can be countered by arguing that it is possible to deposit the contributions owed with a court or a notary public or to contest them by means of legal action. Anyone who disagrees with them would therefore have numerous options for avoiding direct payment to the community while still retaining their voting rights. However, preventing the exercise of voting rights seems to be a particularly appropriate means of preventing debtors from misusing non-payment of contributions as a means of exerting pressure on the community.
[pullquote]Even those who are dissatisfied with the management of the community and the condition of the property must pay their contributions. Failure to pay contributions is not permitted and will only lead to further problems. Anyone who has genuine objections must take the appropriate steps.[/pullquote]
Occasionally, owners attempt to conceal isolated financial difficulties and the resulting inability to pay by citing supposed opposition to a decision or the alleged illegality of a particular measure as grounds for non-payment of contributions. Anyone who has genuine doubts about the legality of a decision can and should make use of the legal options for contesting it. justify;”>The disclosure of the debtors, which is also considered problematic as discussed above, is justified on the grounds that it is not a publicly accessible communication, but merely a notification that only reaches those persons who would have access to the accounts anyway and would therefore be in a position to determine who has fulfilled their payment obligations and who has not. This internal matter affects all owners and is therefore of concern to everyone. Even the disclosure on the notice board, which may be necessary, does not change this, as the notice board is located within the community and the circle of the community is not left by this.
It is often difficult to determine who the debtors are if the deadline for payment has already begun but has not yet expired at the time of the summons.
The obligation to identify the debtors can be problematic if the contributions are not yet due at the time of the summons and the respective owner is therefore not yet in default, but this becomes the case before the meeting is held. It could therefore happen that debtors appear at the meeting who, understandably, were not identified as such in the notice of the meeting, and this could lead to a discussion about the right to vote. According to a widespread interpretation, and based on the wording of the law, such debtors may not exercise their voting rights under Section 15.2 LPH if this situation has not been remedied before the start of the meeting by payment or by exercising the options provided for by law. According to this interpretation, the requirement in Article 16.2 LPH that debtors be named in the notice of meeting can only be applied to those owners who were already in default at the time the notice was issued. This would mean that owners who have not paid after the due date would not be able to exercise their voting rights, even if they are not named in the notice of meeting.
Ideally, owners’ meetings and the corresponding notices should be coordinated so that there are no overlaps and the debtor status can be determined beyond doubt and pointed out in good time.
Contrary to this opinion, however, it is argued that the identification of the debtors in the notice of meeting is a necessary indication in order to be able to effectively attribute to them their breach of duty consisting in the non-payment of contributions. Only in this way can the right to vote be withdrawn if this situation continues and none of the legally prescribed remedies are taken. Since there are representatives of both positions in case law, it is advisable against this background to coordinate the meetings and the associated summonses in such a way that the payment deadlines have already expired at the time they are sent out. In this way, the normal case described by the law can be followed and all actual debtors can be informed of the loss of voting rights they face. If this is not possible, it would be advisable to point out in the invitation that the due date for a contribution falls between the date of the invitation and the meeting, and to provide this information with a corresponding note and all necessary explanations so that every owner is aware of the future risk of default and the associated consequences.
Nature reserve near Cartagena (Murcia) Documents to be sent with the invitation You should not skimp on the documentation to be sent with the invitation. Where possible, owners should be given the opportunity to familiarise themselves with the most important documents in advance.Although it may be useful to send additional information relating to the agenda items with the invitation in order to facilitate the owners’ decision-making process, the law does not stipulate such an obligation. Although individual decisions recognise an explicit right of information for owners, whereby they may ask the administrator to inspect the relevant documents, this does not mean that the invitation must contain any information beyond the content prescribed by law. Despite this lack of obligation, it is advisable to provide owners with as much information as possible on the agenda items specified in the invitation. The better prepared the participants are for the meeting, the more constructive and easier it will be. Votes on the budget or financial statements can only fulfil their actual purpose to a limited extent without the relevant information being provided in advance. If various cost estimates are to be discussed at the meeting, it would be more than advisable to include them with the invitation. How else would the invited owners be able to obtain alternative offers or assess the price/performance ratio in an appropriate manner before the meeting is held?
Palm tree avenue in Torremolinos (Costa del Sol) – Málaga – Andalusia Required majorities [pullquote]The bodies of the owners’ association are well advised to examine, before convening the meeting, what majorities may be required for certain resolutions to be passed.[/pullquote]
Once the owners’ meeting has been validly convened in the first or second convocation and has begun to deal with the items on the agenda, it usually does not take long before the first differences of opinion and opposing positions become apparent. This quickly raises the question of the majorities required for individual items to be approved or rejected by resolution.
However, before discussing the majorities required by law, which must be distinguished according to the subject matter, it is necessary to explain in more detail what characteristics these majorities must have, who exactly is entitled to vote, and what special features must be taken into account when counting votes.
Port of Mazarrón (Murcia) Voting rights (members of the owners’ association) Only members of the owners’ association are entitled to vote. As the name suggests, members of the owners’ association are only the owners, which is why, for example, the tenant of a rented property does not have their own voting rights.
Co-ownership If several persons jointly own a separately owned property, they must appoint a representative.If a separately owned property element is jointly owned by several owners, they must appoint a representative in accordance with Article 15.1, Section 2 of the LPH who is entitled to attend the meeting and vote there. Despite there being several owners, each separately owned property element has only one vote. This is intended to prevent an artificial increase in votes that would otherwise result from co-ownership and, at the same time, to prevent disagreements between the co-owners of a single property from leading to conflicting votes, which would only serve to jeopardise the orderly conduct of the meeting. Articles 392 et seq. of the Código Civil apply to this simple co-ownership. According to Article 398 of the Civil Code, the co-owners must vote on how to deal with the joint property. The economic majority, i.e. the majority of the shares, decides. If a property is jointly owned by four owners, but one of them has an economic share of 55%, that owner can generally make decisions alone. However, it can be reviewed in court whether there has been unlawful abuse to the detriment of individual owners, and this can be prohibited. com/wp-content/uploads/2015/06/Andratx-e1461853891597.jpg‘>
Beneficiaries of usufruct If the property is encumbered with a right of usufruct, the right to participate in the meeting and the right to vote in accordance with Article 15.1.3 LPH also belong to the nudo propietario (literally: bare owner), i.e. the superior owner, and not to the usufructuary. However, unless the owner states otherwise, it can be assumed that the usufructuary is authorised to represent the owner. This power of representation must only be expressly granted by the owner in the case of resolutions requiring unanimity or votes on extraordinary structural improvements.
Cabo de la Nao (Costa Blanca) Holders of a right of residence Unlike in the case of usufructuary rights, Spanish residential property law does not specify the holders of a right of residence.
However, since Article 523 of the Spanish Civil Code extends the rules applicable to usufruct to the right of residence, the holder of a right of residence should have the same options as the usufructuary in this context.
San Sebastián / Donosti (Basque Country) Ownership of several properties within the same community The question often arises as to whether, in the case of ownership of several independent elements of separate property within the same community, several votes are allocated to the same owner, namely one for each element of separate property, or whether this owner has only one vote. As the law does not provide any clear guidance on this point, the question can best be answered by referring to the relevant case law. In this context, the Tribunal Supremo has interpreted the law to mean that the owner of several properties within the same community should only have one vote. The reason for this is that the law requires a double majority for votes, according to which a certain number of votes and a corresponding number of quotas must be obtained in order to pass resolutions. The owner of several properties votes with the total number of shares they own. In this way, their greater participation in the community is clearly reflected and is taken into account in every vote. If they also had one vote for each property, this distinction between votes and shares would largely lose its meaning. However, the intention of the legislator seemed to be precisely to create a balancing mechanism so that no absolute and insurmountable priority of individual (more influential) owners over others (weaker) is promoted. Owners of several elements of separate property therefore have only one vote (i.e. the head principle applies), although this vote carries a higher quota, which means that the larger share in the community is adequately taken into account.
Beach near Marbella (Andalusia) Defaulting debtors Defaulting debtors of the community may be present during the meeting and participate actively, e.g. by taking part in the discussions. However, as long as they have not taken any of the measures listed in Article 15.2 LPH or have not settled their debt to the community before the start of the meeting, they are prevented from exercising their voting rights.
As explained above, the debtor is therefore permitted to exercise their voting rights by paying (or depositing) the outstanding amounts before the start of the meeting. The decisive point in time for the withdrawal of voting rights is immediately before the start of the meeting. The question of whether the debt still exists must therefore be answered at precisely this moment. The debt can therefore only be considered settled if the outstanding amount has actually been paid beforehand. For this reason, the outstanding amount can be paid in cash before the start of the meeting, but not by cheque. Article 1170 of the Código Civil stipulates that, in the case of monetary debts, effective payment by cheque is only deemed to have been made if the cheque has actually been cashed. Until then, due to the risk of insufficient funds, there is no actual payment that would entitle the holder to vote.
Sant Josep / Ibiza (Balearic Islands) Debtors with multiple elements of separate property If someone owns multiple elements of separate property, they must also have fulfilled all payment obligations relating to all elements. Otherwise, they are considered a debtor in their entirety, with all the associated consequences.Since the owner of several separately owned elements within the same community has only one vote (although this vote is accompanied by the quotas of all the properties owned by him, which gives him greater weight than owners of only one property in the case of the required double majorities), the question arises as to how to proceed if they have not paid the contributions due for all their separately owned elements. Based on the wording of Article 15.2 LPH, all owners who have not paid … all debts owed to the community… are prevented from exercising their voting rights. According to this, such an owner may not exercise any voting rights until he has paid all contributions owed or has proceeded in the manner prescribed by law (Article 15.2 LPH). This is precisely the approach taken by the vast majority of case law. Nevertheless, different views are still being discussed in the literature. For example, some authors do not consider it appropriate to deprive an owner who is otherwise willing to pay but who, due to differences of opinion, is not prepared to pay the contribution provided for, e.g. for his business premises, but who pays the sums owed for his other properties, of his voting rights altogether.
Beach in Sant Josep / Ibiza (Balearic Islands) Debtors are co-owners [pullquote]Similar to the case of an owner of several items, when there is a majority of owners, it is important that the entire debt is paid. As long as part of the debt remains, regardless of which co-owner is responsible for it in the internal relationship, the separate property and thus its owners are classified as ordinary debtors.
In the event that the contributions owed on a property held in simple co-ownership are not paid, it is irrelevant whether individual co-owners have paid their share of the contribution. Rather, the entire debt must be repaid. Since all co-owners have only one unified vote, the total amount payable for this property must also be paid in order to exercise this vote. As long as this or the other options provided for in Article 15.2 LPH have not been implemented, the voting right cannot be exercised.
Fuerteventura (Canary Islands) Overview of voting rights: Who has voting rights in the owners’ meeting? Persons Voting rights Owner (paying) Yes Owner (in arrears) No Owner of multiple
properties (paying)
Yes (despite multiple properties, only one vote, but this vote accounts for all quotas of the properties owned). Owner of multiple properties (in default)
No Beneficial owner The assumption of Article 15.1.3 LPH applies: The voting right falls to the owner. However, it is assumed that the usufructuary is authorised to represent the owner unless otherwise known and that no votes are taken on agenda items that require unanimity or that concern extraordinary construction measures or innovations. Tenants Only if a corresponding power of attorney has been granted. Partial owners Yes. Despite multiple owners, only one vote is allocated to the separately owned property. The partial owners must exercise their voting rights through a representative.
Secret ballots Since each vote is allocated a certain quota, and these quotas can vary, a secret ballot is not possible in any case if not every vote has exactly the same quota.The question occasionally arises as to the extent to which secret ballots are permissible. Individual owners may feel pressured to vote a certain way due to particularly good or bad relationships with their neighbours. Interpersonal relationships among owners therefore often have a direct influence on voting behaviour, and certain members of the owners’ association feel inhibited from expressing their true opinions. Secret voting could therefore be of great help in determining the actual will of the owners. How often are more or less urgent decisions not made out of consideration for or resentment towards certain neighbours?
Although the principle of secret voting would offer some advantages in principle for the reasons mentioned above, the voting system provided for by law leads to actual problems that stand in the way of its implementation. The Spanish Condominium Act provides for a double majority or counting system (determination of the votes and the quotas attributable to those votes) for votes.
If the vote were secret, it would not be possible to determine from the votes cast which quotas are attributable to these votes. It would therefore not be possible to count the votes adequately for the purpose of passing a resolution. For this reason, the Tribunal Supremo has declared votes conducted in this manner to be invalid.
However, since a secret ballot would also mean that it would not be possible to determine who voted in what way, there are also practical and procedural obstacles to this. Who else would be entitled to bring an action?
Contrary to this fundamental assessment, but in line with the reasoning set out above, secret ballots could be possible if all owners had the same quotas. In this case, each vote could be assigned a clear quota that would be the same for everyone. However, as soon as one owner has several elements of separate ownership and therefore has different quotas than the other members, a secret ballot would again fail due to the inability to distinguish between the quotas assigned to each vote.
San Sebastián / Donosti – Bahia de la Concha (Basque Country) Voting by post or telephone As Article 15.1 LPH only provides for participation in person or through a representative, owners may not participate in the vote by post. It makes no difference whether a letter stating the owner’s voting intention is sent to any owner who brings it to the meeting or directly to the president, secretary or administrator of the community. Regardless of who the recipient is, such a vote is not permitted. Owners who do not participate should therefore find a suitable representative and authorise and instruct them accordingly if they wish to participate in the vote at the meeting.
The same would apply in a case where an owner wishes to participate in the vote by telephone. Here, too, there would be no physical participation in the meeting, either in person or through a representative.
Macarelleta beach in Menorca (Balearic Islands) Abstentions [pullquote]How abstentions should be treated is a matter of controversy.[/pullquote]
Although the Spanish Condominium Law specifies how to deal with the votes of owners who are absent and not represented at the meeting, it does not specify anything about possible abstentions.
For this reason, there is considerable controversy about how abstentions should be taken into account when calculating the votes and quotas required for the respective resolutions, and what rights the abstaining owners can exercise if they subsequently decide to take action against the resolution.
Particular importance is attached to the assessment of abstentions in resolutions that require unanimity, as in such cases the resolution may depend solely on the legal assessment of a single abstention. However, as we shall see, the assessment of abstentions can also tip the scales in other votes.
Town hall of Cartagena (Murcia) Advocates of the independent nature of abstentions For decisions that require unanimity, some argue that abstaining from voting precludes the possibility of such decisions being adopted. In order for unanimity to be achieved, all owners must agree. A single abstention would therefore make it impossible for a unanimous decision to be reached. Just like votes against, abstentions should be classified as something fundamentally different from a vote in favour.
Some argue that an abstention is not equivalent to a vote in favour, but something fundamentally different.
Some authors apply the same argument to all voting items. This means that, for example, in order for a 3/5 majority or even a simple majority to be achieved, a corresponding number of owners must vote in this ratio. It is not sufficient for the votes in favour of or against the resolution to be in the ratio specified by law. Rather, 3/5 or a simple majority of those present must approve the proposal. The required votes must always be set in relation to the total number of participants (directly or by proxy) and not to the number of votes against. Owners who abstain from voting must therefore be taken into account when calculating the voting rights, but cannot be included in the group of those in favour. They are taken into account when determining the owners present, but not when counting the votes and quotas in favour of the resolution.
Cala Llombards / Mallorca (Balearic Islands) Opponents of the independent nature of abstentions However, the majority of literature and case law considers abstention to be a voluntary evasion, which leads to the complete disregard of this vote. Abstentions should not be taken into account when calculating votes, either for resolutions requiring unanimity or for those requiring a specific majority or number of votes. They therefore do not prevent unanimity among those present, nor do they affect the ratio of votes in favour to the total number of votes cast and quotas.
Port de Soller / Mallorca (Balearic Islands) Challenge by abstaining owners [pullquote]The assessment and classification of abstentions also has an impact on whether the respective owner is entitled to challenge a resolution.[/pullquote]
In addition to the differences of opinion regarding the assessment of abstentions in the context of determining majorities in owners’ meetings, the discussion regarding their classification continues as to whether abstentions legitimise the subsequent contestation of the resolutions passed.
The majority opinion here is that those who abstain from voting are not entitled to take action against the resolutions passed at the meeting after the fact. The law imposes strict requirements on the exercise of the right to challenge resolutions. It does not seem reasonable, and would contradict the wording of Article 18.2 LPH, to apply provisions to abstaining owners that are reserved for only three types of owners: those who are absent from the meeting and not represented, those who have been wrongfully deprived of their voting rights, and those who vote against the resolution.
Bay of Portman / Cartagena (Murcia) The influence of absent or present owners on the vote The absence of individual owners affects the meeting in two ways. On the one hand, the presence (or representation) of owners is used to determine whether the meeting has been validly convened at its first convocation. If necessary, if the required number of votes and quotas has not been reached (the majority of the votes of all owners who in turn hold the majority of all quotas), a second meeting must be held with relaxed attendance requirements (no minimum attendance is required). On the other hand, the resolutions to be passed at the meeting may require certain majorities or even unanimity, which may only be achieved with the vote or votes of absent owners. The law therefore provides mechanisms to ensure that absent owners do not unnecessarily hinder the management of the community, without this meaning that these owners are helplessly at the mercy of decisions taken without their direct participation.
Those owners who, for whatever reason, are prevented from attending a meeting in person may nevertheless participate in the decision-making process.
In principle, owners have the option of appointing a representative to exercise their voting rights (votes with the corresponding quota) on their behalf and to represent their interests at the owners’ meeting.
However, the law also provides for various protective mechanisms to ensure that relevant or disadvantageous decisions cannot simply be made over the heads of owners who are not present or represented.
Strictly speaking, a distinction must be made between two possibilities: On the one hand, every absent owner (just like owners who have been wrongfully prevented from exercising their voting rights or those who have expressly voted against the resolution) has the right to challenge the resolution if, in their opinion (restrictions see Articles 18.2 to 18.4 LPH):
It violates the law or the articles of association of the owners’ meeting (Article 18.1.a.) LPH). If the consequences of the resolution lead to serious impairment of the interests of the owners’ association in favour of one or more owners (Article 18.1.b.) LPH). If the resolution causes serious disadvantage to an owner who is not legally obliged to accept it, or if it has been passed in an abusive manner. On the other hand, the law provides for the possibility that, in the case of decisions on certain (particularly important) matters, the absent owner who rejects the decision may oppose it within 30 days. In other words, in individual cases (depending on the subject matter of the resolution), a vote may still be cast after the meeting. If necessary, this vote may prevent the adoption of a final resolution.
In the case of resolutions requiring unanimity or a qualified majority of 3/5 of the owners and quotas, the votes and quotas of the owners who are not present and not represented shall be added as positive votes on the agenda item in question if the owners concerned do not express their opposition to the provisional resolution adopted by the owners present to the secretary of the community within 30 days of notification (in accordance with Article 9.1.h.) LPH). of the provisional resolution passed by the owners present to the secretary of the community. Instead, their vote and the quota associated with it shall be added to the respective votes of the other owners in accordance with what was actually expressed. In fact, the absent owner will of course only express their opinion retrospectively if they wish to oppose the provisional resolution. Otherwise, their silence will already be deemed consent. This is also in line with the wording of Article 17.8 LPH, which merely provides that the absent owner shall express their opinion if they wish to oppose the provisional resolution of those present.
Since every single vote counts, depending on the subject of the vote and the result, and even a single dissenting vote can cause the resolution to fail (resolutions requiring unanimity can fail with just one dissenting vote – resolutions requiring a qualified majority may also depend on every vote or very few votes if the margin is very narrow), subsequent voting (where permitted by law) is certainly appropriate in individual cases to overturn an unpopular resolution. However, even in cases where subsequent voting is not sufficient to overturn the provisional decision of those present (in the case of decisions that only require a qualified majority and cannot be avoided by notifying several absent owners of their rejection), it should be noted that it is advisable to do so if a legal challenge is intended. If no notification of a dissenting vote is received within the statutory 30-day period (see Article 17.8 LPH), the deemed consent provision applies, which is why, according to some legal opinions, a legal challenge by this owner would fail – even if a lawsuit would otherwise have been successful – because their behaviour is classified as consent by operation of law. This is for the same reasons that it is not possible for the owners participating in the meeting and approving the resolution to challenge it retrospectively. Otherwise, these owners would be contradicting their own behaviour, which is binding under the law.
Although there has always been lively debate on the question of the extent to which the absence of an owner, combined with his inaction after notification of the provisional voting result, would preclude a subsequent challenge, no definitive solution has been found.
After years of inconsistent decisions within the courts, the Tribunal Supremo ruled on this very issue in 2008. According to this ruling, an owner who is absent from the meeting cannot challenge the resolution only if he has exercised his voting right within the 30-day period. Rather, they can refrain from exercising their voting rights retrospectively and still take legal action. Only in cases where the challenge relates to the fact that the required majority was not achieved must they have exercised their retrospective voting rights themselves. To be on the safe side, however, it is strongly advised not to waive the right to exercise voting rights retrospectively. Rather, in order to avoid any doubt, the owner concerned should not let this opportunity pass unused and should cast his vote within the period granted. com/wp-content/uploads/2015/06/Tabarca-bei-Murcia-e1461855631213.jpg‘>
Achieving majorities at the meeting Since the votes of absent and unrepresented owners are counted as yes votes in decisions requiring qualified majorities or unanimity, if this is not opposed within 30 days of the provisional resolution being announced to those present, the question arises as to what minimum requirements must be met for resolutions to be passed, or whether a resolution rejected at the meeting can still be passed retrospectively by adding the votes of those absent.
A distinction must be made depending on the majority required: In the case of decisions that require unanimity, even one dissenting vote prevents a positive resolution from being passed. In this case, no dissenting votes may be cast in the meeting from the outset. The unanimity required for the resolution to be passed can no longer be achieved, despite the possible fictitious consent of the absent owners. However, the situation is different for decisions that only require a qualified majority. Even if the owners present do not approve the resolution by a majority or a qualified majority, or if it is even rejected, a positive resolution could still be passed, at least in theory, by adding the votes of the absent owners (who did not vote against the proposed resolution).
According to the wording of Article 17.8 LPH, the votes of absent owners are counted as votes in favour of the resolution if they do not object to it within 30 days of notification of the resolution passed by those present.
The law therefore provides that a majority already exists among those present, even if it still depends on the behaviour of the absent owners whether the majority required for the final resolution is achieved. The final majority ratios can therefore only be determined after the expiry of the 30 days following notification of the provisional resolution to all absent owners. Until this period has expired, the absent owners can still exercise their voting rights and potentially overturn the resolution passed by those present. However, the 30-day period is not to be understood as a period for appealing against a final decision that has already been made, but as a period that must elapse before the final majority ratios and thus the adoption or rejection of the resolutions can be finally determined.
At the time of the end of the meeting, provisional, approving resolutions must nevertheless have been passed so that the possibility of the subsequent presumption of approval (of the owners who are absent and do not express their opposition within the period) can operate.
Consequently, despite the deemed consent of the absent owners, it is not possible to pass a positive resolution if a majority has not already been achieved among those present.
However, it is disputed whether a simple majority among those present is sufficient for qualified majorities or whether a qualified majority must already be achieved among the owners present.
In isolated cases, it is argued that the qualified majority must already be achieved among those present (in proportion). If a 3/5 majority is required for the resolution to be passed, according to this interpretation, 3/5 of the owners present would have to vote in favour of the resolution. Irrespective of this, based on the behaviour of the absent owners after the expiry of the 30-day period, it would have to be determined whether the resolution was finally passed or not.
However, a simple majority among those present is generally considered sufficient, even if a qualified 3/5 majority must be achieved overall. After the 30-day period has expired, it is then checked whether the required qualified majority has been achieved with the help of the votes of those absent.
Unspoilt valley near Madrid Representation of owners Article 15.1 of the Spanish Condominium Ownership Act provides for two different representation situations. A distinction must be made between representation chosen voluntarily by the owner (discretionary) and representation required by law (statutory).
Legally prescribed representation applies if the owner has limited legal capacity (minors, persons deprived of legal capacity, etc.) or if the property is owned by a legal entity and therefore a representative body or a representative acting on its behalf must act.
In contrast, in the case of voluntary (discretionary) representation, the representative acts on the basis of a decision made by the owner or their legal representative to be represented.
The existence of legal representation does not mean that further discretionary representation is excluded. This means that the representative provided for by law (e.g. the managing director of an S.L., which in turn is the owner of a property) can transfer the power of representation granted to him by law to a third party by means of a power of attorney and in this way appoint a representative on a voluntary basis.
Bay with sandy beach at Cocedores, near Águilas (Murcia) Requirements for effective representation Article 15.1 LPH states that the authorisation by the owner (in the case of voluntary representation) must be in writing and that the power of attorney must be signed by the owner. Verbal authorisation is not permitted. The owners’ meeting may therefore deny the representative his presumed power of representation if no power of attorney has been duly granted. However, if it refrains from doing so and the representative participates in the meeting and the votes, he has initially cast his vote effectively. The only option remaining would be to challenge the decision in court at a later date.
The represented owner may subsequently approve the formally incorrect representation either expressly or tacitly. It should be noted that the formal requirements for authorisations were not enacted for the protection of the community, but for the protection of the represented owner. Finally, the owner who is represented effectively or invalidly is bound in a special way by the vote cast. In some cases, the costs of a measure that has been decided upon are to be borne only by those who voted in favour of it. Furthermore, only those participants in the meeting (either directly themselves or through a representative) who at least voted against the resolution may challenge it.
Lighthouse of Cabo de Palos / Manga del Mar Menor (Murcia) Granting power of attorney by telegram, fax or e-mail Although granting power of attorney by telegram fulfils the written form requirement, it would fail due to the lack of a signature as required by law (Article 15.1 LPH). The owners’ meeting may therefore refuse to recognise such a power of attorney. The situation would be different if fax and e-mail were used, as these can transmit a signed power of attorney. The Spanish courts have therefore recognised signed powers of attorney sent by fax for some time and should, for the same reasons, accept transmission by e-mail if it actually contains a signature. This means that the email must either contain a scanned and signed power of attorney as an attachment or have a digital signature. com/wp-content/uploads/2015/06/Torrevieja-Paseo-Maritimo.jpg‘>
Special formal requirements Although certification is required for many types of powers of attorney in Spain (e.g. powers of attorney for legal proceedings, which can be granted either before the Secretario Judicial, i.e. the court clerk, or before a notary), this does not apply to the power of attorney described in Article 15 LPH. In any case, the wording of the Spanish Condominium Act does not indicate any special requirements other than the written form and signature that would prevent the power of attorney from being granted by private deed. The power of attorney can therefore be granted by private deed, at least in the case of discretionary representation. In the case of legal representation, the documents proving the legal representative’s status would have to be submitted. This is usually derived from documents that are subject to special formal requirements or must be issued by public authorities.
View of the ’Manga del Mar Menor‘ headland, which separates the ’Mar Menor” inland sea from the Mediterranean Sea. Duration of the power of attorney In our opinion, the principal is free to determine the scope and duration of the power of attorney. According to Article 1738 of the Código Civil, this must simply be stated in the power of attorney. It should be noted that Article 1713.2 of the Civil Code stipulates that the power of attorney must expressly authorise the execution of dispositive acts (e.g. sale or taking out a mortgage).
Some authors conclude from this that, in the case of authorisation to participate and vote at a single meeting whose agenda items are known, no explicit authorisation to participate in votes on acts of disposal is required. This authorisation would already be implied by the overall circumstances, as the items on the agenda to be voted on are known. As long as no restriction is made in the power of attorney, the authorised representative would therefore have unlimited power of representation for all known transactions and items to be voted on. For the sake of clarity and to avoid misinterpretation, however, the power of attorney should expressly state whether, in addition to general administrative matters, the proxy is also authorised to dispose of assets if such matters are up for discussion. Conversely, it would be assumed that a general power of attorney that was granted without knowledge of the content of the agenda items under discussion or that was granted for a large number of future meetings does not include the power to dispose of property.
However, some argue that a power of attorney may only be granted for a specific meeting. Otherwise, the owner and the authorised representative could appear at the same meeting with the intention of exercising the voting right. Furthermore, Royal Decree 1564/1989 of 22 December on public limited companies also stipulates that the power of attorney granted by the shareholders must always be expressly referred to a specific meeting. Catalan residential property law also provides for this. The same must also apply to owners’ meetings.
We agree that, ideally, an individual power of attorney tailored to the specific meeting should always be granted; however, as long as the Spanish Condominium Act does not prohibit a general power of attorney for all possible future meetings, there is no reason to declare such a general power of attorney invalid. After all, it may well be that an owner who is prevented from attending for a longer period of time authorises a person they trust to permanently represent their interests. It may also be in the interest of the person granting the power of attorney not to have to issue a new power of attorney each time.
Cabo Cervera near Torrevieja 
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