Section 19 Book of Minutes

(1) The resolutions of the Owners’ Committee shall be recorded in a book of minutes stamped and validated by the Land Registrar in the form set out by the applicable regulations.

 

(2) The minutes of each meeting of the Owners’ Committee are required to express at least the following:

 

a. The date and place of the meeting

 

b. The person who summoned the meeting and, where appropriate, the owners who promoted it

 

c. Whether it was an ordinary or extraordinary and whether it was held on first or on second call

 

d. List of those present and their respective offices; as well as owners represented

 

e. The agenda for the meeting

 

f. The decisions adopted, with indication, where relevant for the validity of the resolution, of the names of owners who voted in favour and against, as well as the allocation corresponding to each owner.

 

(3) The president and the secretary shall sign the minutes at the end of the meeting or within the following ten days.

Once the minutes are signed, the decisions shall be in force, unless otherwise disposed by law.

The minutes shall be sent to the owners, pursuant to the procedure set out in section 9.

Any defects or errors contained in the minutes may be rectified provided that they are signed by the president and the secretary and that the date and place of the meeting are unmistakable expressed, as well as the names of those owners present and those represented, the decisions adopted, the votes in favour and against, and the allocation thereby represented. Rectifications shall be made before the following meeting of the Owners’ Committee and submitted to it for ratification.

 

(4) The secretary shall have custody of the Owners’ Committee minutes book and he shall hold the summons for meetings, notices, proxy-forms and other relevant documents for at least a five-year period.

 

 

19.1 Introduction

 

The minutes of meetings are important legal documents, yet many commonholds do not pay enough attention to them. Some Owners’ Committees put far too much detail in them, while others keep minutes that do not accurately or completely reflect the Committee’s resolutions.

The purpose of the minutes is to provide a permanent legal record of the actions of the OC.

In the event that a commonholder raises an objection to the meeting itself or objects or protests the action of the OC, it then would be necessary for the minutes to reflect the identity of the person objecting, describing the objection, and indicating how the OC resolved the issue. In this way, the OC will have maintained an objective legal record of the matter.

 

A minute is also a written record of a meeting which gives an overview of its structure. The secretary usually takes notes at the meeting and subsequently drafts the minute which will send to each unit-holder. It is not mandatory to neither draft the minute in the meeting nor have it signed by all present . CA ruling in Madrid 03-04-1995

 

Books of minutes duly validated by the Registrar shall be conclusive evidence of resolutions adopted. CA ruling in Zamora 29-01-2001

 

The lack of book of minutes is rather inconvenient in order to prove resolutions adopted in meetings. There are other means admitted by law such as documentary or testimony evidence . CA ruling in Madrid 14-06-2005. These should be used where a commonhold is not recording their resolutions in a book. SC 19-07-1992 and 07-10-1999 and CA ruling in Ourense 29-07-2005

 

19.2 Consequences of use of no validated books

 

Non-fulfilment of this prerequisite of stamping and validation by the Registrar does not mean voidability of the resolutions adopted by the Committee. CA ruling in Cantabria 16-04-04.

Where the commonhold is acting at court the non-stamped books may be filed as a proof, whereas, if a commonholder is the claimant he should prove that the content of the books are false; either by testimony of others owners or by experts.

 

19.3 Validation’s procedure of the Book of minutes 

 

The Registrar shall not validate any book if the application is improperly lodged or if the commonhold is not registered as commonhold land. Section 415 of Mortgage Regulations enacted by Decree of 14-02-1947 sets out the procedure of validation. It must be recalled as it is laid down in the mentioned decree that a marginal note on the relevant commonhold entry at the Land Registry shall be made. That annotation shall express the order number of the validated book and number of sheets.

 

Section 415 As amended by Royal Decree 1368/1992

 

‘In commonhold land to which section 17 of Commonhold Act 49/1960 is applied, books of minutes shall be validated according to the following rules:

 

(1) Books must be validated before use

 

A new book may not be validated until the old one is finished.

In case of loss or misplacement of the previous book, a new one may be validated provided that the president or secretary of the commonhold, (under his responsibility) through affidavit or in the presence of the Registrar states that the loss or destruction has been communicated to all the owners of the commonhold; or that the theft has been reported.

 

(2) The Registrar of the Land Registry in whose district the property is located shall be qualified to validate.

 

(3) An application for validation must express:

 

a) The identity of the applicant and a statement which declares that he is acting on behalf of the president of the commonhold.

 

b) Identification of the commonhold and its registry land details.

 

c) Opening and closing dates of the last book. It shall not be necessary to express those circumstances where the applicant states under his responsibility that the book has not been validated before.

 

All the pages of the book must be numbered. Books may have mobile pages.

 

(4) Once the book and the application have been lodged an opening entry shall be made. The entry must express the date of filing and the applicant and commonhold identification.

 

(5) Validation must be made out in the first page with date expression, identification particulars of the commonhold - including, if fitting, Land Registry details-, number of the book which chronologically corresponds to it within the validate ones by the Registrar in favour of the commonhold, number of pages and that all pages have the Registrar’s stamp indicating the stamp system.

Validation shall be signed by the Registrar. In the case of validation of a new book without lodging the previous book alleging loss or misplacement validation shall express this circumstance and that if the previous one turns up it will ---not may--- be possible to enter new minutes.

 

The Registrar’s stamp will be put through impression or by stamped, perforation or by any mean that guarantee the authenticity of the validation

 

(6) Registrar shall make the validation within the following 5 working days since application was made in due form or within 15 days with good reason

 

An appeal against the Central Chief of Registrars and against Registrar’s refusal to validate may be lodged within 15 working days ´

 

19.4 Duty to provide the first validated book of minutes

 

Books duly validated must be available at the first meeting of the commonhold. It shall be a developers’ duty to provide those books. Where the developer has sold all the units he must give the book to any of the owners before the first call for a meeting of the commonhold. Where a secretary was appointed he must validate the book.

 

19.5 Defective minutes causing nullity of resolutions

 

The argument that a minute containing any defect is invalid and has no effect in law is the sort of argument that gives lawyers a bad name. Such an argument can fairly be called technical in a pejorative sense. However, there is much case law with decisions rendered by appellate courts in which impugnation of minutes fails because the grounds alleged are mere inaccuracies which do not invalidate the minute.

 

19.6 Ad solemnitatem and ad probationem

 

Agreements of the OC don’t require for their existence an ‘ad solemnitatem’ form. It must be pointed out the distinction between ‘ad solemnitatem’ and ‘ad probationem’ formalities.

The former are those that require a class of legal act in order to exist or come into being. In their case, form is substance, in that the transactions, dealings or acts do not exist as such, unless they are executed in the legally regulated form. For instance, donation requires a special form, (a registered deed), for its validity.

The ‘ad probationem’ form is only required as evidence of legal transactions, dealings or acts. It in no way conditions the effectiveness of legal acts, other than in the sense of being thoroughly “legitimated”, whereby it is established that it may only be proved by means of the legally prescribed form.

 

19.6.1 Lack of ‘list of those present and their respective offices, as well as the owners represented’

 

The CA ruling in Alicante 25-01-2006 and 18-09-2006 held that mistakes in respect of those present do not affect resolution’s validity provided the required majority is reached.

A dissimilar approach was adopted by the CA ruling in Malaga 12-12-03, holding that resolutions adopted in a meeting in which an owner was not included in the minute as present were void.

 

In Tenerife 23-09-02, the CA accepted the validity of a minute which did not included a list of the attendee’s names, but where it was provided the number of them.

 

19.6.2 Failing to express the ‘allocation corresponding to each owner’.

 

In the CA rulings of Madrid 21-03-07 and 08-03-2006, was held that minutes failing to express the allocation of each commonholder may affect the validity only ‘where relevant for the validity of the resolution’ in accordance with sub-section (2) (f).

It is also of no importance where the resolution was adopted unanimously. CA ruling in León 20-09-2006

The CA ruling in Madrid 27-10-06 and the CA ruling in Las Palmas 12-12-03 held that it does not matter if the minute does not refer to the allocations because in that particular commonhold the percentage was the same for all the units.

 

19.6.3 Failing to express ‘decisions adopted’

 

If the minute does not refer to the resolution adopted that does not mean that it is necessarily invalid. This should be proven in other ways . SC 07-10-99.

What it is not allowed and could be deemed as an offence is to express in the minutes resolutions which were not adopted in the meeting. CA ruling in Cantabria 07-09-05

Where a resolution has not been expressed in the minute, witnesses or other means may help to prove its existence.  SC 07-10-1999 CA ruling in Madrid 14-06-05

 

19.6.4 Lack of president and secretary’s signature

 

Some courts do not recognise those minutes lacking the president’s signature . CA ruling in Caceres 17-11-2005 and CA ruling in Toledo 26-11-2003

The CA ruling in Madrid 14-07-06 held with common sense that those defects of minutes which do not affect interests of commonholders may not invalidate the resolutions adopted. In the case where a new president is appointed the former president must sign the minutes. The CA ruling in Castellon 06-02-06 held that lack of secretary’s signature is a curable defect.

 

It must be remembered that section 13 (5) allows president to hold the office of secretary simultaneously. In Corunna 24-11-2005 (CA) it was held that it is not necessary that the minutes contain the signature of all the owners.

Because of lack of secretary and president’s signatures, resolutions were deemed invalid in CA ruling in Caceres 17-11-05, CA ruling in Toledo 26-11-03, CA ruling in Corunna 21-03-02, CA ruling in Alicante 31-12-01.

However, a more flexible approach was adopted by the CA ruling in Vizcaya 01-03-05 and the CA ruling in Murcia 24-09-02.

In these decisions the absence of signatures did not invalidate those resolutions adopted.

 

19.6.5 Lack of the list of votes for and against

 

Some minutes’ mistakes adopted such as the lack of the list of votes for and against may void those resolutions adopted. CA ruling in Alava 29-09-2006. against CA ruling in Madrid 23-03-2006

 

19.6.6 The Supreme Court’s approach

 

The Supreme Court in its ruling of 17-12-2001 held that solely in two cases it is possible to contest a resolution on the ground of defectiveness; where minutes fail to express the list of commonholders present and/or their relevant allocations.

Those resolutions adopted apparently lawful could be challenged at Court because the minute is defective in these two cases.

 

19.7 President’s refusal to sign the minutes

 

Where the president refuses to sign the minutes it shall be the secretary-administrator who signs indicating that president refused to sign. A president can exert secretary’s functions therefore he may sign the minutes alone.CA ruling in Castellón 06-02-2006

 

19.8 Rectification of minutes

 

Where owners notice any mistake in the minutes and want to modify them, they must apply for it before the next meeting; otherwise their claims will not be accepted. CA ruling in Asturias 30-05-2005

Mistakes do not mean that secretary or president stops executing defective resolutions, in such cases a resolution could be challenged or modify by the OC. CA ruling in Madrid 28-04-2005

A resolution which cures other may not be challenged if the first has not been challenged. CA ruling in Pontevedra 16-11-2006

 

19.9 Sending out he minutes

 

It was stated by the CA ruling in Cantabria 01-05-2007 that it is a right recognised to each unit holder. In that judgement, it was deemed valid to leave a copy of the minute in the letter-box because the property was the usual place of residence and the owner did not notify any other address of service. Notice board shall be valid just in case of failure of notice.  CA ruling in Álava 01-12-2006

 

It is also permitted to put minutes available in the administrator’s office. CA ruling in Madrid 18-01-2005

 

Where any commonholder wants to receive the minutes by e-mail he must notify the administrator in writing applying for that method of service. The administrator must require in each email the electronic confirmation of its receipt.

 

19.10 Custody of commonhold’s documentation 

 

All books, minutes, documents or accounting records of the commonhold must be kept on a safe site by the secretary and must be retained for a minimum period of 3 years.