Burofax

Information and questions about the Law in Spain and Andalucia.
happyhotspur
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Burofax

Postby happyhotspur » Sat Oct 31, 2009 12:07 pm

A neighbour of mine installed a satellite dish 1.9 metres on his terrace around July 2008. At our recent Community AGM it was suggested that a burofax be issued to him to inform him that he did not have permission from the community president to erect the dish.

However having looked through our local rules of association we do not have anything in place to actually say he could not erect the dish.

We were also told that the burofax had to be issued within one year of the actual erection of the dish. Is this in fact correct?

Not wanting to fall out with my neighbour's and having no personal objection to his dish, can you explained where we stand in the law especially in regard to the Horizontal Property Act and the issuing of the burofax.

many thanks

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pigs-might-fly
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Re: Burofax

Postby pigs-might-fly » Sun Nov 01, 2009 9:27 am

Burofax is just the Spanish equivalent of a UK registered letter, requiring a delivery signature by the addressee.
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pigs-might-fly
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Re: Burofax

Postby pigs-might-fly » Sun Nov 01, 2009 9:36 am

If your community rules do not prohibit the erection of parabolicas/dishes, he needs no permission from anyone, unless there is a general, rather than a specific, rule about items affixed to properties.
On the other hand - Spanish law, following E.U. rulings, provides that any E.U. citizen is entitled to receive broadcast transmissions in their own language and from the channels of their choice.
If the community cannot or will not, provide such facilities, an owner may erect his/her own dish or aerial. A formal letter to the President of the community is required, giving three months notice of the writer's intent to erect such receiving equipment - (this gives the community time to erect a facility) - if at the end of this period there has been no provision, the owner concerned may erect his/her own dish.
The community can do nothing about it, as Spanish law - naturally - takes precedence over community rules.
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julian
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Re: Burofax

Postby julian » Sun Nov 01, 2009 10:15 am

"Burofax is just the Spanish equivalent of a UK registered letter, requiring a delivery signature by the addressee"

there are also "registered letters" here, but the difference is that firstly a burofax is delivered almost immediatly even if sent to the other end of the country, as it is sent to the nearest correos by a type of fax
secondly with a burofax you can have proof of the contents of the letter, not just that "a" letter was received, often people forget the importance of that when the send a registered letter, there is no proof of what was in that letter(it could have been a birthday card!!!).you need to specify that you want the certificate of the contents when you send the burofax.

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pigs-might-fly
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Re: Burofax

Postby pigs-might-fly » Sun Nov 01, 2009 11:48 am

Thanks for the clarification, Julian.
Actually, that's something I may well need to know soon!
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happyhotspur
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Re: Burofax

Postby happyhotspur » Sun Nov 01, 2009 3:44 pm

Many thanks for your help, I do not think that written permission was actually sought prior to the dish being erected, but as at the time we had no other system for receiving British TV within our community, and having been given what I understand was verbal permission from the President, I will advice the community to 'let sleeping dogs lie', after all this particular dish is actually pretty unobtrusive unless you walk along the road with your head up in the sky, not being able to look where your going.

We now have a community dish so I cannot really see anybody else wanting to go down the line of their own dish, when the community one is much cheaper to join in with and offers exactly the same program options.

Once again thanks to all for your help

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pigs-might-fly
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Re: Burofax

Postby pigs-might-fly » Sun Nov 01, 2009 4:04 pm

If you have a now community dish, depending on your specific community rules, you can insist the "private" dish is removed.
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Re: Burofax

Postby happyhotspur » Sun Nov 01, 2009 4:38 pm

We do not have any rules save one that was voted on at this years AGM that there would be no sat dish above .5m, however the minutes are in dispute as some think the wording was 'future dishes' and not referring to the previously installed dish as it had been erected nearly 12 months previous, the other point is that the voting is also now in dispute as the administrators interpretation states it was a 100% vote of those present and those who had given their proxies, however it has now been established that there were at least two votes against, and the actual proxy votes did not appear to be ratified by the signature of a legal representative as stated in the Horizontal Property Act. Apparently the proxies were completed on some official form but not ratified and signed by an independent solicitor. Its getting way to deep for me.

We have realized as a result of the disputes that from now on all AGMs will be minuted not just by the administrators, who are Spanish but also by an English representative to avoid these disputes of language interpretation.

But surely we cannot vote on something that has already been installed one year before imposing the rule banning it? Is there such a thing as a retrospective ruling, not sure that would hold up in court. Especially as when the dish was installed there were no rules governing the erection of it.

And I thought this would be simple to sort out, I'm even more confused!

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Re: Burofax

Postby fljordan » Mon Nov 02, 2009 10:39 am

In addition to the accurate answer posted by pigs-might-fly it must be cited section 9 of the Royal Decree 1/1998 on communal infrastructures providing access to telecommunication services in buildings

9 Right of unit owners or tenants to access to the services and guarantee of the possible shared use of the infrastructure

(1) Unit owners in a building in horizontal property regime, as well as tenants or lessees, shall be entitled to have access to telecommunication services other than those indicated in subsection 1 (2) above by means of a communal installation implemented pursuant to this Royal Decree provided the adaptation of said installation is technically possible or by means of individual systems.
Likewise, any unit owner(s) in a building in horizontal property regime or any tenant(s) of either an entire building or a part of it, as the case may be, shall be entitled, should there not be a communal infrastructure, to install one at their own expense. They shall also be entitled to carry out the adaptation of the infrastructure existing in the building to the provisions of subsection 1 (2) of this Royal Decree.
In order to implement the provisions of this section, unit owners or tenants may take advantage not only of privately owned elements, but also of communal elements in buildings providing the existing infrastructure is not impaired and the signals relating to services already contracted by other users are not modified or interfered with.


(2) In the cases laid out in the previous paragraph, where a unit owner or tenant, as the case may be, wishes to receive a telecommunication service to which access can be gained by means of a certain infrastructure, said unit owner or tenant shall notify the president of the community of property owners or, where applicable, the building’s proprietor before initiating any works whatsoever for the said purpose. The commonhold’s president or building’s landlord shall provide a reply within fifteen days of the said notification and the following rules shall apply, as appropriate:

a) Should the infrastructure required already be in place or the existing one be going to be adapted or a new one be going to be put in place within three months of the notification with the purpose of allowing access to the services in question, no works whatsoever shall be carried out by the unit owner or tenant.

b) Should the infrastructure required not exist or not be adequate for the performance of the service to which the unit owner or tenant wish to gain access or a new one not be installed or the pre-existing one be adapted within the aforementioned three-month period, the unit owner or tenant may then carry out the works necessary for the reception of the relevant telecommunication services. However, should any other unit owner or tenant subsequently request to take advantage of the installation of the new communal infrastructures or of the adaptation of the pre-existing ones implemented by virtue of this section, they may be authorised on the condition that they should comply with the provisions of the second [and last] part of subsection 4 (2).

It seems that happyhotspur’s neighbour did not follow the procedure established in subsection 2 but in my view that does not mean that he would not be entitled to the right provided in subsection (1).

On the other hand some Town Halls regulate through ordinances the erection of dishes, thus it would be necessary to check what is provided by the regulations on this issue in your ‘municipio’

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Re: Burofax

Postby happyhotspur » Mon Nov 02, 2009 11:17 am

Wow fljordan, very comprehensive. Trying to sum up, and getting my mind clear.

So at the time my neighbour erected his dish, we had no other system for receiving UK Television, and the then President said that a communal system was not possible. He actually told my neighbour that the best way forward was to do his own thing and get his own dish, and perhaps get three others to go in with him and share the costs (I was actually approached to join with him), but he did not obtain written permission to erect the dish.

Our community did not have any local rules at the time which covered the erection of individual, or in fact communal dishes, but now wish to impose one retrospectively. Not sure how that impacts on the fact that the community now has voted to have a communal dish erected, and it has been done.

As far as I can ascertain our local Town Hall does not have any rules covering this issue, as we would not have been able to erect our communal dish.

So in my mind my neighbour should be allowed to keep the dish rather than drag our whole community through the Spanish Court system, at great cost to all of us and not knowing what the outcome would be anyway. Its a no win situation for us all.

Have I got this right?

fljordan
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Re: Burofax

Postby fljordan » Mon Nov 02, 2009 2:01 pm

Yes, indeed. It would be very difficult for your community to win this case at court because there was no rule prohibiting the erection of dishes at that time. I can't find any ruling on this matter with similar facts
Regarding the issue of retroactivity, as a general rule in Spanish Law it is not allowed to apply rules to facts happened before the enactment of such rules

Keep us updated on the matter

happyhotspur
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Re: Burofax

Postby happyhotspur » Mon Nov 02, 2009 6:39 pm

Many thanks fljordan for your help, I will certainly keep you informed as to what happens, but I think anybody with half a brain would just drop it and move on to more important community issues.

Once again many thanks

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Re: Burofax

Postby Jool » Tue Nov 03, 2009 12:09 pm

Regarding the issue of retroactivity, as a general rule in Spanish Law it is not allowed to apply rules to facts happened before the enactment of such rules
Do you know where that is written please? There are cases where planning laws have been enacted retrospectively amongst other things so I am intrigued by this - it seems very sensible for Spain and that has not been my experience of spanish law to date

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Re: Burofax

Postby julian » Tue Nov 03, 2009 12:33 pm

I think you´ll find it is part of the Constitución Española Jool

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Re: Burofax

Postby Lavanda » Tue Nov 03, 2009 12:33 pm

Hi Jool. I did post, ages ago, that property, including land and fincas, that have been REGISTERED cannot be affected by any laws retrospectively. Very useful in the case of building land and surface areas required by an Ayuntamiento that are increased after a person buys a plot that was legal when they bought it but not legal now. If you understand what I mean. :D

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Re: Burofax

Postby fljordan » Tue Nov 03, 2009 1:43 pm

Regarding the retroactiveness:

In Spanish Law such principle is established in several statutes among others the Civil Code in its section 2 (3). As Julian said our Constitution guarantees that principle in section 9 (3)
As a consequence of the principle of irretroactivity of law the application of a rule to events that took place or began to produce legal effects before the rule is approved is not allowed

Jool
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Re: Burofax

Postby Jool » Tue Nov 03, 2009 2:19 pm

Yes Lavanda - you read me correctly.... :)

So what about the Ley de la Costa then? Wasn´t that applied retrospectively? Even if the houses are not demolished family will not be able to inherit yet could prior to the Act.........

In Almanzora Valley they are certainly trying to invoke a law retrospectively as some houses were started before the land size changed but not finished before the law changed....and are now thus "illegal" etc I could go on, (no doubt Julian you will come along and tell me I am wrong as you so love to do!) but these are facts and can be verified ........

I find that in practice spanish law seems to be the law of convenience rather than of rights.......constitutional or not.

julian
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Re: Burofax

Postby julian » Tue Nov 03, 2009 5:56 pm

you are right Jool, especially when you use the word "trying", because if it does indeed go against the spanish constitution they will eventually fail.

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Re: Burofax

Postby Jool » Tue Nov 03, 2009 8:45 pm

trying
probably was not correct as in reality the houses are deemed "illegal" on this basis...........alleging that as the law prevailing at time of completion was different then that was the law that prevailed, clearly a nonsense.........as build licences were legitimately issued, does not stop years of stress and worry for all those property owners does it - I don´t call that effective law, do you? It is part of what is worrying prospective purchasers in sSpain and we all suffer from that as prices get lower and integrity and spanish in same sentence becomes ever more unlikely


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