Section 16 Notice of meetings
(1) The meeting of the Owners’ Committee shall be held at least once a year to approve the budget and the accounts. It shall also meet at any other time the president considers it advisable, or upon request of one quarter of the owners or a number representing, at least, 25 percent of the whole commonhold allocations.
(2) The notices for the meetings shall be made by the president or, failing this, by the promoters of the meeting. The notice shall include the items to be dealt with, the place, day and time of the first call and, where applicable, of the second call. The notice shall be served in accordance with section 9.
The notice of meeting shall include a list of owners with outstanding debts to the commonhold and shall warn of the deprivation of their voting rights where the case falls within the situation expressed in section 15 (2).
Any owner may request the Owners’ committee to examine and resolve any matter whatsoever which concerns the commonhold. For this purpose a request in writing should be sent to the president setting out clearly the items requested to be dealt with.
The president shall then include them in the agenda of the following meeting.
Where a majority of owners representing a majority of the whole commonhold allocations are not present at the time of the first call, the meeting shall then be convened on second call without the need for a quorum.
The meeting shall be held on second call at the place and on the date and time set forth in the first call and may take place the same day at least half an hour later than the first call. Failing this, it shall be called again, in accordance with the requirements established in this section within eight calendar days of the meeting of first call not having been held. In such a case, the notice of summons must be made at least three days in advance.
(3) The annual general meeting shall be called with at least, six days’ notice and extraordinary meetings shall be called with sufficient time to inform all parties involved. A meeting not called by the president may be legally held provided all owners are present and willing.
Contraventions of the rules set forth in this section may cause the resolutions adopted in those meetings to become null and void.
16.1 Calling the first meeting
When the developer has sold any or all the units of the development, the first meeting may be called by him or by any of the unit-holders.
16.2 Types of meeting
The Act requires only one annual general meeting as ordinary and compulsory. This may be supplemented by any number of extraordinary meetings.
16.3 President’s duties
Calling a meeting is function of the president derived from his empowerment attributed in section 13 (3).
He must also call a meeting in the event that ‘one quarter of the owners or a number representing, at least, 25 percent of the whole commonhold allocations’ request it.
16.4 Mandatory list of owners with outstanding debts See section 15
16.5 Calling a meeting by owners
Meetings may be called by:
a. the president or
b. one quarter of the owners or a number representing not less than one-fourth of the total commonhold allocations.
This quorum is alternative, thus, it is not necessary to reach both percentages just one of them. It is the last resource where a president refuses to call a meeting. In that case, secretaries or administrators will serve notices even without the approval of the president.
The promoters of those meetings may also draw and serve notices calling for a meeting; but usually the administrator shall do all the paperwork.
Where the president does not want to attend and/or chair the meeting called by the owners, then the meeting will be held under the chairmanship of the vice-president.
Where there is no vice-president appointed, the Owners’ Committee could adopt resolutions in that meeting in which nobody is chairing
Courts are divided on this issue, some holding that it is not compulsory for owners to obtain a previous refusal from the president, SC 01-07-91, 29-12-92, 09-12-93 and 23-02-96, whereas others hold that the quarter option may be exercised only if there is a previous request from the promoter owners; whether or not it is answered. SC 13-12-1993 CA ruling in Alicante 13-04-2005 CA ruling in Las Palmas 04-10-2004
c. The secretary where is indicated that they are following instructions from the president. CA ruling in Zaragoza 02-11-2004
16.6 Content of notice of meetings
In the light of the statutory guide that voting provisions are satisfied only if every owner is given the opportunity to vote, the importance of the notice provisions and due observance of them is obvious.
The second subsection of this section provides for the contents of the notice:
The notice must to contain ‘the place, day and time of the first call and, where applicable, of the second call’ and the agenda of the business to be transacted at the meeting .
It is not required by the Act to include a detailed explanation on the business agenda, CA ruling Vizcaya 18-05-2000 and CA ruling in Cordoba 04-04-2004, but it must be included all business to be transacted. What is recognised is a right for information on the request of any owner about any of the business to be transacted.
The Supreme Court has declared the nullity of those resolutions passed hidden in the ‘question time’ or ‘any other businesses’ at the end of the meeting because business can be transacted only if details of it are included in the notice convening the meeting. SC 12-01-2012
16.7 Length of notice for meetings
This section provides the notice period for general meetings shall not be less than six days’ prior to the meeting, whereas extraordinary meetings shall be ‘with sufficient time to inform all parties involved’
That time shall be counted from the date in which the notice is received. CA ruling in Valencia 20-04-2005
Depending on which court, the consequences of failing to comply with the required terms could entail:
i. Nullity or no effect of the notice, meeting and resolutions adopted. CA ruling in Malaga 27-01-2004
ii. Avoidability, which means challenging independently each resolution within three months under section 18 (3). CA ruling in Cantabria 16-05-2006
16.8 Venue for meetings
The Act does not established where meetings shall be held. However, it is customary to hold them within the commonhold or at such other suitable place as is nearby and reasonable accessible to all commonholders.
16.9 Mode of service of notice of meetings
Section 9 (1) (h) provides rules in regard the address of service given to the commonhold association. It is valid to leave notices in the letter-box if that medium has been usually used before without any problem. CA ruling in Madrid 21-03-07, 27-05-02 and 29-09-01. Nevertheless the CA ruling in Pontevedra 01-12-2005 and the CA ruling in Malaga 22-12-2008 did not admit that method.
The Court of Appeal in Cantabria 04-10-04 also permitted the validity of notices left in the letter-box, if there had been previous attempted by registered mail.
Fax was admitted by the CA ruling in Barcelona 29-11-2006 provided that it was the habitual means.
Burofax is another usual medium of notice in Spain which ensures evidence of the wording of a letter and provides legal evidence, with signature confirmation that is third-party proof.
Documents can be sent, with full legal validity, from any post office with additional services available, such as proof of delivery, service notice and certified copy, providing an authenticated copy of the contents of the burofax sent.
The Court of Appeal in Madrid 06-03-06 held that it does not matter for the validity of this medium whether the addressee refused to receive the burofax.
Certified letter with proof of delivery. The recipient's or authorised person's signature is proof of delivery. That evidence of confirmation of reception is sent by the Post Office to the address of the sender. Like burofax, in case of a letter which is not received by the recipient, a note is left at his/ her address informing he/ she can pick up their mail at a the Post Office, therefore even in case where the letter is refused by the recipient, the notice shall be deemed as served. The Supreme Court 13-05-07 ruled on the validity of this mode of service as conclusive evidence that the notice was given.
Notice boards were considered as a subsidiary form of notice by the Court of appeal in Cadiz 23-03-06 because it was impossible to serve the notice through another method. The Court of appeal in Leon 20-04-04 held that it is not permitted to use that medium if previous attempts via the others means, such as certified letter or burofax, has not been made.
Standard letter is not admitted as an evidence of notice delivery because of lack of acknowledgment receipt. CA ruling in Pontevedra 25-01-06
Delivery by hand is usually admitted because a witness will always be available. SC 07-06-97 and CA in Valencia 17-07-07
Courts are taking the same approaches as in the length of notices distinguishing between those who defend the doctrine of nullity and others who claim the avoidability. CA ruling in Pontevedra 01-12-2005 CA ruling in Cantabria 16-05-2006.
For those commonholders who expressly opt for notice of meetings via e-mail, some kind of electronic confirmation of receipt is required in order to avoid impugnation of resolutions on the ground of defective notices.
If this system is the usual and the owners have agreed is valid as it was stated in CA Granada 22-01-2016 folowwing the approach of the SC in rulings 10-7-03 , 22-3-06 and 19-9-07
16.10 Deemed service of notice of meetings
It is the OC who has the evidential burden to prove that the commencement of the term provided for the objection of a resolution by virtue of section 18. CA in Asturias 14-03-06, CA in Valencia 10-10-05, CA in Barcelona 21-09-04
16.11 Restrictions on transaction of business at meetings
No business may be transacted at any meeting unless general details to it were included in the notice convening the meeting otherwise it could be voided upon challenging it at court . CA ruling in Alicante 31-10-01
Where the president and/or administrator make their email addresses available for commonholders, it must lawful to use that means to propose business to be dealt in the meeting.
16.12 President’s refusal to include business from a requisition of owners
It is compulsory for the president to include such business if such a request has been made in writing and is clearly expressed.
The request must include a brief general description of the business to be transacted or discussed at the meeting
Where any resolution has not yet been adopted, the only legal resource available for any owner to whom a proposal has been rejected would be to take legal action through ordinary proceedings asking the court for an order which obliges the president to include the owner’s request.
Due to the slowness of Spaniard justice it must be also applied, within the action, for any required precautionary measures. Resolutions adopted in a meeting where the president refused to transact any business could not be void if those businesses did not affect the resolutions adopted.
16.13 First and second call
This section provides that a meeting is quorate on first call by a ‘majority of owners representing a majority of the whole commonhold allocations’ that is the double majority usually established by the Act for the approval of some decisions.
If the mentioned quorum is not present in that first call, then, following half an hour, the second call shall not subject to any quorum thus the meeting can be held irrespective of the number of those presents. A resolution adopted at a meeting is ineffective unless there is a ‘quorum’: that is to say a specified sufficient proportion of the owners in attendance
16.14 Language to be used at the meeting
This point is important - whether a meeting and its resolutions might be voided when that meeting is held in a language other than Spanish -. The Spanish Constitution in its section 3 (1) recognizes the right to use Spanish as an official language. It is also recognised in its section 13 (1) that ‘aliens in Spain shall enjoy the public freedoms guaranteed by the present Part, under the terms to be laid down by treaties and the law’
The Supreme Court ruling of 15-11-02 held that it may not impose the use of a language in private relationships. In this important judgement a Spaniard attempted to challenge resolutions adopted in a meeting on the grounds of non use of Spanish language.
However the Supreme Court refused his arguments because:
i. 1º It was agreed in a resolution passed by the OC that English shall be the language used at meetings.
ii. 2º Moreover, in that case was provided a translation to Spanish rendered by the secretary. The CA rulings in Malaga 30-12-2005, 16-01-2006 and Las Palmas 02-04-2003 took the same approach, adding that there is no provision in the Act imposing an obligation to held meetings in Spanish.
Thus, resolutions agreed in those meetings are valid.