Can a community president do this

Information and questions about the Law in Spain and Andalucia.
Nerjaboy
Andalucia.com Amigo
Posts: 53
Joined: Sun Feb 06, 2005 6:27 pm
Location: Nerja

Can a community president do this

Postby Nerjaboy » Sat Feb 06, 2010 6:18 pm

At a recent community AGM those attending found out the president had authorised the employment of the lifeguard on a permanent employment contract.

Having looked at the minutes of previous agm's I can find no minute of a proposal being agreed to employ the lifeguard permanently, having previously had the lifeguard on a temporary basis.

Can a community president do this without reference to the other home owners?

fljordan
Andalucia.com Amigo
Posts: 62
Joined: Wed May 07, 2008 8:04 am

Re: Can a community president do this

Postby fljordan » Mon Feb 08, 2010 9:54 am

There is no ruling dealing with your question but we can infer an answer after analyzing the president's functions under Spanish commonhold law, which are:

To summon ordinary meetings of the OC at least once a year.
ii. To summon extraordinary meetings when he or she finds it necessary.
iii. To chair the meetings of the OC supervising its running.
iv. To acknowledge requests from the owners addressing them to the OC, in particular those issues stemmed from section 7 (1).
v. To prepare and bring court actions representing the commonhold demanding commonholders to cease in their actions in accordance with section 7 (2).
vi. To warn owners of breaches in their duties ensuring that all commonholders observe their obligations towards the commonhold as a whole and in relation to other owners in particular. The president shall, in particular, use any right, power or procedure conferred by virtue of the Act for the purpose of preventing, remedying or curtailing a failure on the part of a commonholder to comply with a requirement or duty imposed on him by virtue of the title or a provision of the Act.
vii. To sign agreements with providers or suppliers provided that the Owners’ Committee has decided so in pursuance of section 14 (e).

It must be also highlighted that the second paragraph of section 17 (1) provides:

The establishment or elimination of the lift, janitor, reception and security services, or other common services or facilities of general interest, even where they involve the amendment of the Commonhold Community statement or the Articles shall require the favourable vote of three fifths of the total number of owners, who must also represent three fifths of the whole commonhold allocations.

In my view and from a legal point of view, the president did not act within his or her own sphere of responsibility.
As a general rule, the president does not have the power on behalf of the commonhold to appoint and enter freely into contracts with third parties.
The Court of Appeal CA ruling in Las Palmas 16-02-2004, considered of no effect a rental agreement signed by the president without a resolution of the Owners’ Committee. The same court took a same approach on another decision on 27-05-2005 but this time in respect of a president’s decision in which a new administrator was hired. The CA ruling in Asturias 26-04-2005 in regard of contracting a lawyer applied the same rule of no effect. Other courts grant more power to the president though .
Those third parties dealing with the president only have to check if he or she actually is the president. They do not need to require any authorization of the OC as a result of the application of the good faith principle which protects third parties interests when they are trading. By virtue of that principle it will not be possible to void any contract signed by the president on the ground that he or she exceeded the authority conferred by his or her office. In such cases the president could only be held accountable to the OC for what he or she has signed.

Nerjaboy
Andalucia.com Amigo
Posts: 53
Joined: Sun Feb 06, 2005 6:27 pm
Location: Nerja

Re: Can a community president do this

Postby Nerjaboy » Mon Feb 08, 2010 11:47 am

Thanks very much for your reply, which is very helpful.
I should have also said I felt a precedent had been set in previous years when a 2nd gardner was about to be employed it was put to the vote at an AGM where the then President got overwhelming support for his action.

Interestingly, those of us who were surprised by the actions don't want to void the employment contract as it gives the community as employer the ability to address "issues" that have been raised by a small number of homeowners.

The President is refusing to address the concerns those homeowners have in relation to the employees conduct (silly little things that with a quiet word of warning can be sorted), so I am trying to establish if the homeowners can take it upon themselves to address the employee.

Also, the community established a committee to support and advise the President but this year a number stepped down as in the presidents words (from one of those who stepped down "they are there for discussion and if he doesn't like something they ask to be actioned he will act in a way he feels acceptable as President".

Problem we have is that a vast majority of homeowners have been absent owners for many years and their proxy is with the President and Vice President, with many not knowing the approach being taken at the AGM.

Anyway, enough of my rant. Again thanks for your reply and helpful points.

Miro
Andalucia Guru
Posts: 3584
Joined: Tue Feb 27, 2007 8:20 pm
Location: Merseyside, formally Torremolinos

Re: Can a community president do this

Postby Miro » Mon Feb 08, 2010 4:47 pm

From our experience, I would advise against employing anyone directly, since getting rid of them can be troublesome. Better surely to contract companies or autonomos that you can ditch easily if their work is not satisfactory?
On this point, does anybody know if it is possible to reduce a part time employee's hours without any problems? And what is the employer's (community's) obligation if they wish to lay such an employee off? i.e. make them redundant, as opposed to sacking them, for which presumably there would have to be reasonable grounds. If you make someone "redundant", how long before you can decide that the job exists again and employ someone else in the same role (in this case, cleaner)?
Don't worry about what people think, they don't do it very often

"Acquiring a dog may be the only opportunity a human ever has to choose a relative," Mordecai Siegal 1935-2010.


Who is online

Users browsing this forum: No registered users and 18 guests