Section 15 Attendance and voting at meetings

(1) Attendance at the general meeting shall be in person or by legal or voluntary representation, for which a writing signed by the owner is sufficient accreditation.

Where a flat or premises belongs jointly to different owners, these shall name one representative to attend and to vote on their behalf in the meetings. Where a flat or premises is held in usufruct , the freehold owner shall be entitled to attend and vote, but unless otherwise stated, shall be presumed to be represented by the usufructuary. However, express representation shall be required for resolutions referred to in the first provision of section 17 or on extraordinary repairs or improvements.

 

(2) Owners who at the time the meeting is called are not up-to-date with payments of outstanding commonhold charges and have not judicially challenged them, or deposited the amount thereof in court, or with the notary public shall be allowed to take part in the debates but are not able to vote.

The minutes of the meeting shall record the names of the owners deprived of their voting rights, and neither the person nor the respective allocation shall be computed in when calculating the majorities required by this Act.

 

 

No owner is obliged to attend meetings of the Owners’ Committee, however absent owners shall be bound by the resolutions adopted if they don’t challenge them within the time prescribed by the Act.

It is convenient to create a register of commonholders in the first meeting updating it under provisions laid down in section 9 (1) (h). In the case of an equality of votes, the president shall not be entitled to a casting vote in addition to any other vote he may have.

 

15.1 Proxy voting

 

This section refers to two kinds of representation:

 

• Legal: by law in case of public or private bodies, represented by a duly authorised representative,  under age or disable persons

• Voluntary: using a proxy voluntarily.

 

Section 15 allows votes to be given either personally or by proxy.

A proxy need not to be an owner. Proxies could be for one meeting specifically or general and for an unlimited period. CA ruling in Malaga 21-06-1999

Thus, representation may be general or specific therefore unit-holders may be permitted to appoint proxies to attend a series of meetings over a period of time or in some cases proxies may only vote once at each meeting.

Subsection (1) does not provide for a special form of notice to be used where a commonholder intends to use a proxy to vote , courts demand only identification of the principal and the proxy holder as well as the signature of the former.

It could be by fax but where the Committee has doubt about the authenticity of the fax could deny its validity , or by telegram but not photocopies.  CA ruling in Almeria 25-10-2002 or CA ruling in Murcia 09-12-2005 CA ruling in Asturias 27-01-2005 CA ruling in Alicante 28-05-2008 CA ruling in Alicante 28-05-2008

 

If the grantor sends the power by e-mail, he must sign it digitally. In principle, the appointment of a proxy shall be in writing, the president shall check the validity and he may not refuse the proxy where it has apparently fulfilled the requirements. CA ruling in Madrid 28-04-2005 CA ruling in Murcia 07-02-2005

However, where a proxy is appointed verbally and no objection is raised, then the vote shall be valid. SC 28-04-86 SC 17-06-93 CA ruling in Barcelona 15-05-07

Later confirmation of the proxy vote could be required. CA ruling in Vizcaya 30-03-2007

 

Resolutions adopted in a meeting with any proxy appointed verbally may be challenged at court by absent owners.

 

Where anyone wishes to object to a voter on the grounds that he is not entitled to vote, the objection must be made at the meeting at which the vote objected to is tendered. In case of mother, father, sons or brothers proxy in writing could be not necessary if no commonholder opposed the representation. CA ruling in Barcelona 19-09-2007

Commonholders may limit their proxy’s freedom of manoeuvre and instruct them as to the nature of the vote to be made but proxy’s vote binds the principal notwithstanding that the latter is entitled to take legal action against the proxy in the case of non-compliance of instructions. CA ruling in Madrid 27-04-2007 and 10-10-02

It is not permitted for a proxy to appoint another proxy and the secretary can be appointed as a proxy by any owner. CA ruling in Barcelona 22-12-03

 

15.2 The tacit consent

 

Sometimes lack of opposition could mean acceptance of the resolution and it shall be deemed as a unanimous resolution where nobody opposed it without the requirement of express voting. CA ruling in Castellon 31-07-06 and CA ruling in Alicante 25-09-02

 

15.3 Abstention See section 17

 

15.4 Secret vote

 

Resolutions shall be put to the vote by a show of hands, thus secret vote is not allowed by law indirectly because it is necessary to know the allocation of each owner in order to reach the two majorities prescribed by the Act, SC 17-12-01,  but if the computation of allocations does not affect the outcome of the voting, as it is happens where every owner has the same allocation, that kind of vote could be admitted. CA ruling in Madrid 15-11-2005 CA ruling in Cordoba 11-04-1997 CA ruling in Saragossa 28-07-2006

The CA ruling in Tarragona 31-05-2005 dealt with a case in which a unit holder applied for an authorization to carry out works which require unanimity, and then the Committee refused his proposal by secret voting.

The owner challenged the resolution at court on the ground of secret vote is not allowed in law. The judge held that secret voting was irrelevant to the outcome of the vote.

Casting a vote by post is not permitted.

 

15.5 Voting rights of joint unit-holders

 

As with any freehold estate in land, a commonhold unit can be held by two or more persons as joint unit-holders, in that case, they shall decide which one is the representative to ‘attend and to vote on their behalf in the meetings’.

As with ordinary proxies, they should have a document in which the proxy is recognised.

 

If they don’t appoint a representative:

 

i. It shall be valid to serve the notice on any of them but in case of bringing an action both have to be sued. CA ruling in Madrid 07-09-2001

 

ii. Any of them could go to court on behalf of all. CA ruling in Murcia 19-12-2006

 

15.6 Votes per owner and the voting parity principle

 

A commonholder who owns more than one unit has just one vote. SC 10-02-1995 CA ruling in Huesca 21-09-2004 CA ruling in Murcia 01-07-2005

That rule may be considered as unfair but it ensures that developers will not have effective control of the commonhold.

However, as it is laid down in the majorities system stated in section 16 those owners who have more than one unit will have the sum of allocations of his units.

It must be recalled that the special system of majorities established by the Act requires in most of cases both the majority of the votes and the majority of commonhold allocations, which are necessary in order to reach the quorum for passing resolutions.

Only section 16 (1) contains one assumption in which this double system of majorities established in the Act could be used alternatively. It is deemed as a fraud of law that situation in which a commonholder owning more than one property appoints a proxy for each properly he owns, under section 6 (4) of the Civil Code which defines fraud of law.

 

15.7 Usufructuary right to vote Notwithstanding the limit laid down on ‘resolutions referred to in the first provision of section 17 or on extraordinary repairs or improvements’ there is a presumption of representation; conclusive unless disproved by evidence to the contrary.

 

It is the unit-holder who shall expressly give notice of the termination of a proxy’s authority. If such notice has not been received, the vote by the usufructuary will be effective despite the termination of the proxy’s authority. Where the owner wishes to extend the scope of representation to those resolutions referred to in section 17(1) he also has to give notice expressly.

 

15.8 Deprivation of voting rights

 

In order to tackle arrears the Act deprives defaulters of voting rights although they are entitled to attend meetings and even take part in the debates. CA ruling in Baleares 14-12-2004

The Act does not make provision for other restrictions imposed on owners with outstanding arrears therefore they could be appointed as presidents, secretaries or administrators. CA ruling in Vizcaya 20-02-2002

As a general rule, no objection shall be raised to the qualification of any voter except at the meeting at which the vote objected to is tendered, and every vote not disallowed at the meeting shall be valid.

 

Procedure of deprivation requires a prior list of defaulting owners in the notice calling for the meeting, warning them that they shall not be entitled to vote because of the arrears , otherwise resolutions adopted could be void. CA ruling in Asturias 11-05-2004 and CA ruling in Corunna 19-06-2006 CA ruling in Granada 12-01-07 and similarly CA ruling in Saragossa 6-6-06

Other courts do not consider it essential to include that list of defaulters in order to remove voting rights and have admitted that defaulters aware of their debts could be deprived of voting rights even when the list of defaulters are omitted in the notice.CA ruling in Vizcaya 18-12-2001 CA ruling in Madrid 28-04-2005 CA ruling in Asturias 18-02-2003 and CA ruling in Vizcaya 18-12-01

Unlawfully deprived owners must object to the deprivation firstly at the meeting in order to challenge later the resolutions adopted at Court.

 

15.8.1 Scope of deprivation 

 

The scope of that deprivation is very controversial and whether it applies only to the majorities or to the unanimity.

It is submitted that that deprivation does not extend to those major issues such as subdivision of units with alteration of allocations or to the development of new facilities or services as well as to the leasing of common parts affecting the defaulter owner or to the amendment of the Articles , in general, matters for which the unanimity is required. CA ruling in Saragossa 18-04-2006

This approach is not always taken by all the courts.

 

Some of them claim that deprivation affects to all kind of resolutions, even those which requires unanimity. CA ruling in Valencia 17-10-2002 CA ruling in Saragossa 18-04-06 refused

 

Regardless of whether the deprived owner had voted (void vote) or had been deprived of his vote (unlawfully) if his vote had not altered the outcome of the voting, the resolutions adopted could not be annulled.

 

15.8.2 Avoiding deprivation

 

In order to avoid deprivation of voting rights defaulters have just two paths; contesting the deprivation or depositing the debt at Court.

In this respect section 18 (2) enables challenging resolutions by ‘those who were improperly deprived of their right to vote.’

 

Where an agreement of the OC enables defaulting owners to vote, that resolution could be deemed as void or could be ignored because even with this vote the outcome of the voting is not affected. CA ruling in Toledo 25-10-2001 and CA ruling in Las Palmas 25-05-2004 CA ruling in Murcia 05-04-2004 CA ruling in Valencia 05-10-2002

 

Therefore, any covenant of the Articles or any resolution, even unanimous, of the Committee enabling defaulting owners to vote could be void and opposed at Court. In spite of that deprivation, the allocation of defaulting owners shall be counted for the quorum required to convene the meeting in the first call in pursuance of section 16 (2) 3º.

Where a commonholder owns several units and some of them are up to date and others are not, he shall be deprived of all his voting rights. Similarly, unit-holders in default cannot challenge resolutions at Court other than those which deprive them of their voting rights.

 

15.8.3 Improper deprivation of voting rights

 

It shall be deemed as improper deprivation where the OC does not act under provisions of sections 15 (2) and 16, for instance without the required list of defaulters.  CA ruling in Baleares 29-07-2008

 

In that case the deprived owners may challenge in Court their deprivation in accordance with section 18 (1) (a) and (c).

The CA ruling in Madrid 12-07-07 and the CA ruling in Cordoba 06-06-2007 held that the deprivation of voting rights of a defaulter for an extraordinary charge was unlawful because that charge was not approved by the Owners’ Committee, thus the previous approval of the debt shall be required. CA ruling in Corunna 19-06-2006

 

The date for calculating the arrears must be the date of the meeting not the date of the notice of the meeting. CA ruling in Madrid 31-01-2006

It may not be deprived of their voting rights those commonholders in default just for the real month. CA ruling in Madrid 19-12-2005

Where the debt is not clear because bad administration, deprivation of voting rights is not permitted. CA ruling in Barcelona 19-07-2004

 

15.9 Video recording of meetings

 

There is no legal provision in the Act about recording meetings, however the Civil Procedure Rules 1/2000 used in place of the Act in its rule 299 admits use of this mean as a piece of evidence in court as well as its r. 382 (1).

 

It is highly advisable to record meetings in order to prevent disputes between commonholders about what was truly decided, and above all for rectification of minutes under section 19 (3).

 

Even though it is convenient to include such item in the agenda of the meeting and to adopt a resolution agreeing to the recording of the meeting there is no legal requirement to do so, bearing in mind that where there is no resolution any of the commonholders could contest the recording alleging invasion of privacy.

 

It shall also be allowed to record meetings by an owner herself and any of the owners is entitled to get a copy of the recording from the administrator. Recording a meeting cannot substitute the minutes which are always mandatory in accordance to section 19.

 

15.9 Languages See section 16