Section 20 Administrator’s duties
It shall be the function of the administrator:
(a) To watch over the proper management of the commonhold, its installations and services, and to advise and admonish owners to that effect.
(b) To prepare the budget of predictable expenses with sufficient anticipation and to submit it to the Owners’ Committee, proposing measures to cover the expenses.
(c) To see to the upkeep and maintenance of the commonhold, arranging for urgent repairs and measures, reporting promptly to the president or, where appropriate, to the owners.
(d) To carry out the decisions adopted regarding maintenance works and to make and receive payments as appropriate.
(e) To act, where applicable, as secretary of the Owners’ Committee and to keep custody of commonhold documents available for the owners.
(f) Any other function conferred by the Owners’ Committee.
This section provides for the major responsibilities of the administrator and is linked with sections 7, 9, 13, 14 and 21.
This office involves more specific assignments than those established in this section such as drafting and serving notices or other statutory documents for the purposes of work related commonhold running.
This function must be performed primarily by the administrator who will be the executor of actions tending to the upkeep of the commonhold. Any owner may request the administrator carries out works. These petitions have to be made in writing and the administrator must immediately inform the president about the demand.
The administrator must propose works to be done and the OC has to discuss them in meetings.
20.2 Preparing budgets and assessments for regular expenditure
Administrators will be required to produce an annual budget which will be presented at the annual meeting.
This estimate will set out the income required for payment of regular expenses. It will also include contingencies for urgent repairs as well as the accounting of the commonhold and its presentation under section 16.
The administrator prepares budget, reports comparing budget to actual expenditures, balance sheets, income and expenses statements, statements of delinquent accounts, statements of uncollected sums owing to the commonhold, statements of debts owing by the commonhold, etc.
20.3 Upkeep and maintenance of the commonhold
The general duty of the commonhold established in section 10 must be remembered. It obliges commonholds to ‘carry out works necessary for the proper upkeep and maintenance of the building and its facilities to ensure appropriate structural conditions, imperviousness, habitation and safety’. Whether or not a repair is urgent may be a difficult question to answer.
If the administrator is not sure about the urgency he shall arrange for repairs so that he is not responsible by omission.
For example, if a wall within the commonhold is ready to fall down because of the last storm and the president’s mobile is off. The administrator shall also follow the progress of the works.
If the president is available, the administrator should obtain his permission in order to carry out the works.
Where a company hired by the administrator fails to carry out the works in time and as a consequence of that, harm is caused to the commonhold, the company and not the administrator shall be liable. CA ruling in Barcelona 18-02-2004
The administrator in any case shall report on all urgent repairs done at the next meeting of the OC.
With regards to works repairs at the commonhold, subsection (c) of section 14 provides that it will be a function of the OC .
c) To approve estimates and authorise all repair works to be performed on the property, whether ordinary or extraordinary, and to be informed of any urgent measures adopted by the administrator in accordance with the terms of section 20 (c).
Where the administrator does not report on urgent repairs, he could be accountable.
20.4 Carrying out decisions and making payments
One of the fundamental and ongoing duties of the administrators will be the financial management of the commonhold.
They will need to maintain the income stream by way of the commonhold assessment on the owners to ensure that the day-to-day expenses of providing the commonhold services and the regular maintenance and decoration of the fabric of the common parts are ensured.
The administrator must carry out the president’s instructions relating to payments unless these instructions were against resolutions of the OC. Where the payments were not agreed in the Committee the secretary must request instructions from the president in writing.
20.5 Keeping proper records of the commonholders and businesses of the commonhold
The secretary-administrator is in charge of drafting the minutes and validation of books.
Documents which must be kept by the administrator are:
• A register of commonholders. The secretary-administrator should keep a register of commonholders and enter in it a. The name, address and unit number of each owner and an address for service (if different) b. The date on which de person was registered as a commonholder c. The date at which the person ceased to be a commonholder
• Minutes. Administrator shall cause minutes to be made of all meetings.
• Notices of meetings.
• Book of minutes. Any commonholder shall have the right, on reasonable notice, to request commonhold’s records and to be provided.
• Land Registration documents.
• Invoices for works and services.
• Bank statements.
There are other records, however which the prudent administrator will keep in order to assist in the smooth administration of the commonhold. Correspondence with commonholders, documents generated during the course of building works during the course of disputes or quotations for unsuccessful tenderers for a contract.
20.5.1 Commonholder’s right to information
The culture of secrecy should have no place in commonhold. Even if the president or administrator considers that there is no need for the commonholders to learn of the minutiae of a particular works contract, any refusal to divulge the detail upon request will come across as lofty disdain at best; as something to hide at worst.
The CA ruling in Alicante 23-07-2002 held that both the president and administrator are obliged to provide any information and documentation in regards of the commonhold’s running .Similarly, CA in Barcelona 24-10-2006.
In contrast with this approach the CA in Malaga 30-11-2005 and SC ruling 16-04-1993 held that there is no specific provision in the Act conferring commonholders a right to information, therefore the Act does not extend to the commonholders the right to inspect records which the administrator is obliged to keep.
20.6 Duties not included in the office of administrator.
In accordance with the CA ruling in Malaga 27-02-2007 the administrator is not liable to the commonholders individually but to the OC as a whole .Similarly, but in regard of enquiries from a individual owner to the administrator CA in Malaga 27/02/2007.
It is also submitted that the administrator could refuse orders from the president if they are against the resolutions of the OC. As it is laid down in subsection (e) it is permitted to hold the offices of administrator and secretary simultaneously.
It must be recalled here that the offices of administrator and secretary are the only ones which may be hold by a non-owner although any owner is also able to occupy that position.