Communities of owners are often a source of conflict between neighbours. In our law firm, we are experts in challenging community of owners’ agreements. From issues related to tourist rentals, to agreements concerning works in the community, etc. In this week’s article we analyse a key aspect that is often overlooked. The notification of the notice of the call to the community of owners meeting, and the legal consequences of it not being carried out correctly.
The notification of the notice of meeting. Context and Legal Framework. Art. 16 LPH.
The Horizontal Property Act (LPH) regulates the form in which the Meetings of the homeowner’s association must be summoned and celebrated. Article 16 requires the Ordinary Annual Meeting to be called at least “six days in advance”. And for Extraordinary Meetings, “with as much notice as possible so that all interested parties may be informed”.
The notice of the community of owners must specify the place, date, time and matters to be discussed. In short, it is a question of all the owners having the opportunity to know and to participate in the matters to be discussed at the meeting.
Contestation and Nullity of community agreements. Art. 18 LPH. Consequences of the lack of notification.
Art. 18 of the LPH lists the agreements approved in a Meeting that can be challenged in the court:
– Those which are contrary to the law or the by-laws.
– The one that are seriously detrimental to the interests of the community, to the benefit of one or more owners.
– Those that involve any prejudice to any owner who is not obliged to bear it, or that have been adopted with abuse of rights, etc.
The lack of notification of the summons of the community of owners meeting would be framed in the challengeable agreements for being contrary to the law. The reason is clear. If an owner is not notified of the call with all the guarantees, he/she won’t be able to participate, nor express his opinion. Therefore, his/her rights as owner would be flagrantly violated. Therefore, the meeting held, and the resolutions adopted therein would be radically null and void and could be annulled in court.
Burden of proof on the notification. Deadline to challenge.
The deadline for challenging community of owners’ agreements due to the lack of notification of the summons, would be of 1 year. Although it is advisable to challenge it as soon as possible. During the court procedure, it will be the homeowners’ association who must prove that the notification was carried out with all the guarantees. That is to say, the burden of proof falls on the community of owners, and not on the neighbours/owners.
Conclusion.
At White-Baos Lawyers we are experts in Horizontal Property Law, and we have successfully defended in court on countless occasions, both communities of owners and neighbours/owners. If you were not notified correctly the summons to a Meeting, you could challenge the agreement in court. Do not hesitate to contact us. We will study your case and offer you expert legal advice on the subject.
The information provided in this article is not intended to be legal advice but rather to convey information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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