Question: Last year, I attended the meeting of my homeowners’ association in Denia. Unfortunately, I had to leave after about 40 minutes, right after the second item on the agenda. A few days later, I learned about the decisions that had been made after I left the meeting. I wanted to challenge one of these decisions. However, after talking to the property manager, he explained that this was allegedly not possible because I had attended the meeting but had not voted against the decision in question or expressed any reservations. However, due to my absence at this point, this was not possible. Can you really be punished like this if you only attended at the beginning?
Answer: The case is clear if you either did not participate in the meeting at all or were present the entire time. In the first case, you would be treated as an absent owner, and in the second case as a participating owner. On the one hand, this is important for assessing your voting behaviour (classification of your vote as a positive or negative vote or abstention) and for calculating the appeal periods (the appeal period cannot begin for absent owners until they are aware of the resolution, whereas for a resolution already passed at the meeting, this period can begin for those present as soon as the meeting ends).
There are currently two different opinions on this in case law
However, if you were partially present and partially absent, the classification becomes more difficult. In my personal opinion, you should be treated as a present owner with regard to those items of the resolution that were discussed in your presence. After leaving the meeting, you should be treated as an absent owner.
Some argue that even those who were only present at the beginning should be classified as present for the entire meeting. After leaving the meeting, you would then be treated as if you had abstained on the subsequent agenda items, as you did not cast a specific vote for or against them. Anyone who has not expressly reserved the right to take legal action against individual agenda items during the meeting (known as ‘salvar el voto’) would then be denied the right to take legal action under Article 18.3 LPH.
The opposing view, on the other hand, takes the position that actual participation must also be checked during the meeting, item by item. If this is not the case, the owner who is absent at that point in time may be treated as such at the relevant time and, depending on the subject matter of the resolution, may still cast his vote retrospectively, as if he were completely absent, or take legal action immediately.
Even though, as already mentioned, I consider the second view to be more correct, in view of the problems described, every owner should, as a precaution, ensure before the start of the meeting that they can attend in full or, if this is not possible, that they do not attend at all or appoint a representative. If it is nevertheless unavoidable to leave the meeting early, the voting right should be transferred to at least one of the other owners present, together with clear instructions, and either vote against the proposals or, in the event of abstention, reserve the right to challenge the decision (‘salvar el voto’).
In any case, you should be aware that your conversation with the property manager does not affect the appeal periods (three or twelve months) in any way, as they cannot be interrupted or suspended. It is therefore important to note that any appeal must be lodged within the specified time limit. There is a good chance of a successful challenge if it is justified on its merits.
Since summer 2015, we have been covering topics related to Spanish law in the bilingual magazine ‘La Guía’. Both the published articles and the answers to readers’ questions are reproduced in full in German and Spanish.
