Hi All,
Background:
A block of 40 apartments built in 2009, five sell pre-crash, bank then repossesses the rest from the developer and sits on them until early 2013. During that time there is a barely-functioning Community with a silent majority (the bank) owning 35 apartments but totally disinterested. Prior to 2013 various issues get decided at a few AGMs where there are only five votes from a possible 40 being cast which is unfortunate but I guess it is legal.
During 2013 all 35 empty apartments are sold at greatly reduced prices and the Community starts to develop but is very new. Certain cliques form between groups of residents and the Administrator gets closer to certain cliques than others. The Community is governed by the Law of Horizontal Division and a set of Statutes which are basically a rehash of the LHD.
The top floor apartments have roof terraces with low walls between them. Some of these walls abut a central courtyard which is Community owned whereas other walls are "party walls" separating one person's roof terrace from their neighbour's roof terrace.
The Issue:
In mid 2014 and without even consulting let alone achieving agreement with their neighbour, a resident installs aluminium posts 30cm down into the party wall between the two roof terraces and one metre high above the party wall. They then fit totally opaque white glass between these posts centrally along the party wall. They do this with the help of the Administrator who facilitates the building licenses and appoints the workmen. The residents in question and the Administrator claim the screens are for wind protection but the white glass shows it to be a privacy issue.
The neighbour has totally lost all views of the beach and ocean from their terrace and is very upset and distressed.
When questioned at the AGM in December 2014 the Administrator claims that no rules or laws were broken by this action, but bizarrely also claims that going forward the rules are that neighbour approval will be required should anyone else wish to do something similar. If this sounds ridiculous then that is because it is !
I don't think the distressed resident is going to get any joy from the Administrator because I think they know they've messed this issue up massively by facilitating the other resident getting the necessary planning approval at the Ayuntamiento, so they don't know what to do and are just blustering on hoping that the issue will go away.
The distressed resident has lodged a formal complaint with the architect at the Ayuntamiento who issued the building license but despite saying that he would, he has not yet visited the site.
Can anyone offer any advice as to how the distressed resident should proceed ? Firstly, do they have a case ?
Very many thanks for any replies,
Des
Community Dispute - Loss of Views
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Martin Page
- Resident
- Posts: 1805
- Joined: Sat Nov 26, 2005 4:57 pm
- Location: Chiclana de la Frontera - Costa de Luz
Re: Community Dispute - Loss of Views
A denuncia will focus their attention .... You/They have tried to raise the issue sociably ... now - a Denuncia is the next step
Re: Community Dispute - Loss of Views
Hi Martin,
Many thanks for the reply.
I know in circumstances such as these people like to frame their own issue as though it is someone else's
but in this case I am genuinely trying to help a neighbour in distress whilst at the same time more fully understand my rights as a new property owner in the same block. This issue is such an injustice that I find it very hard to ignore and if it were my wall I would take the things down and wait for the police, the council and everyone else to turn up and we could all have it out. But my neighbour is not up to such measures.
I shall have to Google "Denuncia" as I've never heard of it before, but if you have any brief information then many thanks.
A couple of follow up questions if I may:
1) Does the fact that these screens were erected by the resident in collusion with the Administrator and the Administrator's "managing agent" affect to whom the "Denuncia" should be sent ? Or is it enough to send such a document to the resident and let them start sorting it out between them ? In such circumstances I would love to be a fly on the wall as they are in a right old pickle.
2) So far the distressed resident has approached one lawyer without any joy, but I get the feeling she is dealing with the wrong sort of lawyer in a resort town where it's all about flogging properties to foreigners. Are all these Abogados who seem to specialise in property conveyancing and Community administration really fully qualified in the law of the land and able to start issuing proceedings such as these Denuncias ? Or does she need to approach a different type of lawyer to move things to a different level ? Sorry if this is a dumb question but I'm very new to things like this.
As you correctly surmised we first raised this as a very public issue at the AGM and exposed the apparent fallacy of the Administrator's position, them claiming that somehow between these screens being erected in the summer and the start of the AGM in December there had been some miraculous change to the Community rules thus protecting everyone else but not the distressed resident in question.
Very many thanks for any thoughts, and a Happy Christmas to you.
Des
Many thanks for the reply.
I know in circumstances such as these people like to frame their own issue as though it is someone else's
but in this case I am genuinely trying to help a neighbour in distress whilst at the same time more fully understand my rights as a new property owner in the same block. This issue is such an injustice that I find it very hard to ignore and if it were my wall I would take the things down and wait for the police, the council and everyone else to turn up and we could all have it out. But my neighbour is not up to such measures.I shall have to Google "Denuncia" as I've never heard of it before, but if you have any brief information then many thanks.
A couple of follow up questions if I may:
1) Does the fact that these screens were erected by the resident in collusion with the Administrator and the Administrator's "managing agent" affect to whom the "Denuncia" should be sent ? Or is it enough to send such a document to the resident and let them start sorting it out between them ? In such circumstances I would love to be a fly on the wall as they are in a right old pickle.
2) So far the distressed resident has approached one lawyer without any joy, but I get the feeling she is dealing with the wrong sort of lawyer in a resort town where it's all about flogging properties to foreigners. Are all these Abogados who seem to specialise in property conveyancing and Community administration really fully qualified in the law of the land and able to start issuing proceedings such as these Denuncias ? Or does she need to approach a different type of lawyer to move things to a different level ? Sorry if this is a dumb question but I'm very new to things like this.
As you correctly surmised we first raised this as a very public issue at the AGM and exposed the apparent fallacy of the Administrator's position, them claiming that somehow between these screens being erected in the summer and the start of the AGM in December there had been some miraculous change to the Community rules thus protecting everyone else but not the distressed resident in question.
Very many thanks for any thoughts, and a Happy Christmas to you.
Des
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Enrique
- Andalucia Guru
- Posts: 9490
- Joined: Tue Mar 24, 2009 9:47 am
- Location: Mytchett/Alcala La Real
Re: Community Dispute - Loss of Views
Hi DesWalker,
"So far the distressed resident has approached one lawyer without any joy"
If you're in the A.com catchment area....................ie. Malaga area..................
Have you tried these Guys....................
http://www.gfmendez.com/
Members have used them....including myself............
Seasons Greetings
"So far the distressed resident has approached one lawyer without any joy"
If you're in the A.com catchment area....................ie. Malaga area..................
Have you tried these Guys....................
http://www.gfmendez.com/
Members have used them....including myself............
Seasons Greetings
All my best learning experiences start with a problem I need to solve.
Re: Community Dispute - Loss of Views
Might even be an idea to consult the town's architect. I have a flat in a small community of three flat owners and the restaurant below. I recently was told (I don't go to the flat except to tidy it before a viewing) that one of the owners decided to build on the common area! I contacted the town hall architect who has now issued a denuncia as no licence was sought.
Dave
Re: Community Dispute - Loss of Views
A denuncia for each & every one of them. Administrator, Admins 'agent', the owner of said wall & The council architect.
Todos somos Lorca.
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Martin Page
- Resident
- Posts: 1805
- Joined: Sat Nov 26, 2005 4:57 pm
- Location: Chiclana de la Frontera - Costa de Luz
Re: Community Dispute - Loss of Views
I agree with Gus .. denounce everybody that has been involved. As for solicitors, go ahead if cost is no option .
Once the denuncia is served. Usually, the Guardia will take over the initial investigation to substantiate the Issue, and its usually up to them to get to the bottom of things. If your claim is valid they will raise the court proceedings. if it isn't valid , they will advise you accordingly.
A denuncia is by far the simplest method of sorting out a dispute - even if it has to go to court in the long run . It is one of Spains better ideas.
Its like a triage for disputes.
Once the denuncia is served. Usually, the Guardia will take over the initial investigation to substantiate the Issue, and its usually up to them to get to the bottom of things. If your claim is valid they will raise the court proceedings. if it isn't valid , they will advise you accordingly.
A denuncia is by far the simplest method of sorting out a dispute - even if it has to go to court in the long run . It is one of Spains better ideas.
Its like a triage for disputes.
Re: Community Dispute - Loss of Views
Your Administrator is just that; he administrates, he is effectively an employee - he has no authority but to act on instructions from his "boss", the community President, who in turn can only act in accordance with the wishes of the appropriate majority of owners who have voted on a resolution at an AGM or EGM.
So what is your President's response to your problem ? He is your first contact, not the other owner, not the Administrator or anyone else.
parilla
So what is your President's response to your problem ? He is your first contact, not the other owner, not the Administrator or anyone else.
parilla
Re: Community Dispute - Loss of Views
My legal knowledge is limited to the UK but I have doubts on some of the opinions being expressed here.
Firstly I'm unclear as to the basis of the Denouncia being issued. It has been stated that the owner who had the screen built obtained a licence to do so, so he acted legally. The administrator presumably can claim some protection by the licence and whilst he may have acted unprofessionally I doubt that this will represent grounds for prosecution.
Unlike the UK, the Spanish authorities do not appear to have any consultation process for Planning Applications. Their system is unsophisticated and ignores the rights of third parties. I had an experience when my neighbour built an extension which included a balcony that overlooked my garden and pool area. I had a 30 second conversation with a local solicitor and decided I had no real recourse - so I planted a few rapidly growing Acacia trees which 12 months later removed the problem.
If there was not an obvious solution I would have had a conversation with the neighbour to try and agree an amicable compromise, which surely must be the first action here. If this doesn't work a little gentle pressure may be needed, possibly involving others including the President. If that doesn't work a bit of "friendly" retaliation might make them realise that they need to compromise.
Although I gather that the Police do take Denouncias very seriously I suspect they will need to be pointed to a simple breach of a law - but that is not apparent. The erection is legal. But if the Denouncia fails you will have thrown away the chance to resolve the matter by discussion.
Firstly I'm unclear as to the basis of the Denouncia being issued. It has been stated that the owner who had the screen built obtained a licence to do so, so he acted legally. The administrator presumably can claim some protection by the licence and whilst he may have acted unprofessionally I doubt that this will represent grounds for prosecution.
Unlike the UK, the Spanish authorities do not appear to have any consultation process for Planning Applications. Their system is unsophisticated and ignores the rights of third parties. I had an experience when my neighbour built an extension which included a balcony that overlooked my garden and pool area. I had a 30 second conversation with a local solicitor and decided I had no real recourse - so I planted a few rapidly growing Acacia trees which 12 months later removed the problem.
If there was not an obvious solution I would have had a conversation with the neighbour to try and agree an amicable compromise, which surely must be the first action here. If this doesn't work a little gentle pressure may be needed, possibly involving others including the President. If that doesn't work a bit of "friendly" retaliation might make them realise that they need to compromise.
Although I gather that the Police do take Denouncias very seriously I suspect they will need to be pointed to a simple breach of a law - but that is not apparent. The erection is legal. But if the Denouncia fails you will have thrown away the chance to resolve the matter by discussion.
Re: Community Dispute - Loss of Views
Permission must first be sought from the community. (Horizontal law)It has been stated that the owner who had the screen built obtained a licence to do so, so he acted legally.
Dave
Re: Community Dispute - Loss of Views
I think what you need to do is get out your original purchase agreement which will set out community fees and all procedures to be fallowed in connection with same.
There will be a chapter that covers this and if any deviation from this this would have to be agreed by the majority of the people that are paying the community fees.
I think if the people that are paying the community fees are not being represented properly you will have no problem getting support.
If all procedures were correctly fallowed there is probably not much you can do.
Just make sure you have the facts as it seems to me this problem is not with the property owner but within the community of which you are a paying member.
There will be a chapter that covers this and if any deviation from this this would have to be agreed by the majority of the people that are paying the community fees.
I think if the people that are paying the community fees are not being represented properly you will have no problem getting support.
If all procedures were correctly fallowed there is probably not much you can do.
Just make sure you have the facts as it seems to me this problem is not with the property owner but within the community of which you are a paying member.
Re: Community Dispute - Loss of Views
You won't find the community statutes in your purchase contract. In an ideal world these, along with recent AGM/EGM minutes, these should be obtained through your lawyer prior to signing the contract.
If the work that has been done alters the exterior appearance of the building, then prior approval must be given by an appropriate majority at an owner's meeting, and this will be on record in the minutes. If this has not been done, then it doesn't matter if a "licence" is granted by the King of Spain himself, the work is illegal under the LPH, and can be contested.
Parilla
If the work that has been done alters the exterior appearance of the building, then prior approval must be given by an appropriate majority at an owner's meeting, and this will be on record in the minutes. If this has not been done, then it doesn't matter if a "licence" is granted by the King of Spain himself, the work is illegal under the LPH, and can be contested.
Parilla
Re: Community Dispute - Loss of Views
Many thanks indeed for all the replies. Some excellent points have been made.
There are some complications to this situation which I didn't want to introduce as I cannot be 100% sure exactly what happened (it is my neighbours dispute and predates my ownership). However here goes my attempt to explain what I think I know ...
1) Prior to the goings-on in my initial post another resident wanted to put screens on a wall between them and the communal area. This proposal went to one of the Community meetings where only five residents attended, the other 35 apartments still being owned by the bank. The resolution passed to the very great dismay of one of the five residents, the only one whose views would be badly affected.
2) The Administrator and the past President (who also voted in favour of the resolution) seem to have interpreted this passed resolution as giving authority to any subsequent resident to put screens on any wall. Such an understanding suits the Administrator and his managing agent agent as he will likely get most of the work for requesting any future licenses and installing any future screens so the more the merrier from his point of view. All this predates my ownership so the minutes of this meeting are all I have to go on and they are totally unclear precisely what was agreed. Such sloppiness would not be allowed to happen now.
3) Whilst this initial building license request was being drawn up by the Administrator on behalf of the resident, one of the other 35 apartments was sold and the buyer immediately wanted to erect screens of his own but this time on a wall directly between him and his immediate neighbour (who happens to be the same person who was distraught at the passing of the resolution for the first screens and so is about to be subject to a double whammy). The new owner approached the Administrator and the Administrator's managing agent to find out what permissions were required and was told that everything was already in place as a general principle had already been agreed in the earlier meeting to discuss the other screens. The Administrator then offered to put in a license request for this new and separate work at the same time as the initial license request but without any consultation with the neighbour who shares the wall or with the Community at large. The past President apparently signed off these license applications.
Recall that in the first application it was the communal area which shared the wall with the first resident whereas the second application is for a screen on a "party" wall with a completely in-the-dark neighbour.
4) Both licenses were granted by the Ayuntamiento and the work was done by a tradesman appointed by the Administrator's managing agent. The first application was at least known about in advance by the affected neighbour and has very badly blocked her views but at least it was for a wall abutting the communal area, for a job she knew about in advance and a job for which she lost a vote at a meeting (where 5 out of 40 votes were cast). But the second application was not known about at all by my neighbour, has now completely obliterated her views and is on a "party" wall which she is expected to maintain in conjunction with the offending neighbour. She was distraught enough with the first application but the second has taken the issue to a whole different level of unhappiness.
5) All other apartments were in the process of being sold whilst these applications were with the Ayuntamiento and so finally we can start to have proper AGMs with a representative number of actual owners other than the bank.
6) At the most recent AGM held in December 2014 (the screens having been erected in August or September 2014) I casually enquired about what I would need to do in order to put screens on the "party" wall between me and my neighbour. I have absolutely no intention of doing this but just wanted to seek clarification for myself and also to lay a trap. The Administrator and the Administrator's agent said that I must first approach my neighbour for consent and then approach the Community for the new President to sign it off. They fell right into my trap, so to ram it home and to be 100% sure for everyone's benefit I clarified on three further occasions that me and my neighbour must first agree and on each occasion I was told "Yes".
7) When the distressed resident sprung the trap by asking why this didn't apply to her, they started to bluster and say "err sorry, that isn't what must happen now, it is what must happen from now on if we agree here and now that it must happen from now on". I pointed out that everyone in the room had heard what was said on multiple occasions about these being the current rules and it all degenerates into farce. I don't say this because I have a particular point of view, it was as blatant an about-turn as I have ever seen. Quite ridiculous.
8 ) So it is all unclear. Whilst the initial application was selfish it did at least go through a process so I doubt there is anything that can be done to reclaim the views that are lost there. But the second application for a "party" wall just feels illegal to me. Consequently I am wondering if there are some rules in the Horizontal Law which are "above" any decisions at AGMs ? Otherwise what is to stop someone in flat 1 arbitrarily proposing a screen between flats 20 and 21 (say), getting agreement at a Community meeting (perhaps because everyone hates the people in flats 20 and 21 so is happy to vote in favour) and then demanding that screens are erected between two distant neighbours even if they don't want them themselves !! Party walls must surely have consent between neighbours !?
Any thoughts at all are very gratefully received. And many thanks for reading this far.
Des
There are some complications to this situation which I didn't want to introduce as I cannot be 100% sure exactly what happened (it is my neighbours dispute and predates my ownership). However here goes my attempt to explain what I think I know ...
1) Prior to the goings-on in my initial post another resident wanted to put screens on a wall between them and the communal area. This proposal went to one of the Community meetings where only five residents attended, the other 35 apartments still being owned by the bank. The resolution passed to the very great dismay of one of the five residents, the only one whose views would be badly affected.
2) The Administrator and the past President (who also voted in favour of the resolution) seem to have interpreted this passed resolution as giving authority to any subsequent resident to put screens on any wall. Such an understanding suits the Administrator and his managing agent agent as he will likely get most of the work for requesting any future licenses and installing any future screens so the more the merrier from his point of view. All this predates my ownership so the minutes of this meeting are all I have to go on and they are totally unclear precisely what was agreed. Such sloppiness would not be allowed to happen now.
3) Whilst this initial building license request was being drawn up by the Administrator on behalf of the resident, one of the other 35 apartments was sold and the buyer immediately wanted to erect screens of his own but this time on a wall directly between him and his immediate neighbour (who happens to be the same person who was distraught at the passing of the resolution for the first screens and so is about to be subject to a double whammy). The new owner approached the Administrator and the Administrator's managing agent to find out what permissions were required and was told that everything was already in place as a general principle had already been agreed in the earlier meeting to discuss the other screens. The Administrator then offered to put in a license request for this new and separate work at the same time as the initial license request but without any consultation with the neighbour who shares the wall or with the Community at large. The past President apparently signed off these license applications.
Recall that in the first application it was the communal area which shared the wall with the first resident whereas the second application is for a screen on a "party" wall with a completely in-the-dark neighbour.
4) Both licenses were granted by the Ayuntamiento and the work was done by a tradesman appointed by the Administrator's managing agent. The first application was at least known about in advance by the affected neighbour and has very badly blocked her views but at least it was for a wall abutting the communal area, for a job she knew about in advance and a job for which she lost a vote at a meeting (where 5 out of 40 votes were cast). But the second application was not known about at all by my neighbour, has now completely obliterated her views and is on a "party" wall which she is expected to maintain in conjunction with the offending neighbour. She was distraught enough with the first application but the second has taken the issue to a whole different level of unhappiness.
5) All other apartments were in the process of being sold whilst these applications were with the Ayuntamiento and so finally we can start to have proper AGMs with a representative number of actual owners other than the bank.
6) At the most recent AGM held in December 2014 (the screens having been erected in August or September 2014) I casually enquired about what I would need to do in order to put screens on the "party" wall between me and my neighbour. I have absolutely no intention of doing this but just wanted to seek clarification for myself and also to lay a trap. The Administrator and the Administrator's agent said that I must first approach my neighbour for consent and then approach the Community for the new President to sign it off. They fell right into my trap, so to ram it home and to be 100% sure for everyone's benefit I clarified on three further occasions that me and my neighbour must first agree and on each occasion I was told "Yes".
7) When the distressed resident sprung the trap by asking why this didn't apply to her, they started to bluster and say "err sorry, that isn't what must happen now, it is what must happen from now on if we agree here and now that it must happen from now on". I pointed out that everyone in the room had heard what was said on multiple occasions about these being the current rules and it all degenerates into farce. I don't say this because I have a particular point of view, it was as blatant an about-turn as I have ever seen. Quite ridiculous.
8 ) So it is all unclear. Whilst the initial application was selfish it did at least go through a process so I doubt there is anything that can be done to reclaim the views that are lost there. But the second application for a "party" wall just feels illegal to me. Consequently I am wondering if there are some rules in the Horizontal Law which are "above" any decisions at AGMs ? Otherwise what is to stop someone in flat 1 arbitrarily proposing a screen between flats 20 and 21 (say), getting agreement at a Community meeting (perhaps because everyone hates the people in flats 20 and 21 so is happy to vote in favour) and then demanding that screens are erected between two distant neighbours even if they don't want them themselves !! Party walls must surely have consent between neighbours !?
Any thoughts at all are very gratefully received. And many thanks for reading this far.
Des
Last edited by DesWalker on Tue Jan 06, 2015 10:18 am, edited 5 times in total.
Re: Community Dispute - Loss of Views
Law of horizontal property: Article 11 - paragraph 3 states, "... innovations that render any part of the building unserviceable for the use and enjoyment of an individual owner shall require his express consent.
Article 11 - paragraph 3 explanation states, "... gives the individual owner the power to block any change in the building which would affetc his use and enjoyment of the property. This would include the building of a wall in front of his window for example."
Article 11 - paragraph 3 explanation states, "... gives the individual owner the power to block any change in the building which would affetc his use and enjoyment of the property. This would include the building of a wall in front of his window for example."
Dave
Re: Community Dispute - Loss of Views
Thanks Mowser,
You have hit my point precisely on the head.
I am aware of these articles and as far as I am concerned they supersede any arbitrary decisions made at AGMs. Now either I am wrong (which could very well be the case as I am totally new to all this) or these screens (quite possibly both sets as both sets fail the tests you mention but for now let's focus on the second set) are illegal.
Walking around our town there are many sets of screens made from clear glass, clearly designed to shield the wind but protect views, but these are the first screens that I can find with totally opaque glass.
I think the specific situation is now very clear on this thread. I certainly can't explain it any more clearly, and you have supplied the relevant points of law. So I would be very interested to hear any further comments.
Subsequent to the recent AGM these points of law were supplied to the Administrator who let's face it should be very familiar with them. To date I don't know what he said and in addition to this comment we also await with great interest the set of minutes to see how he tries to explain the farcical argument that I created.
So the question remains, is what has happened illegal and what (if anything) can be done about it ? How should my neighbour proceed ?
The architect at the Ayuntamiento keeps saying he will make a visit to the site but never does.
Des
You have hit my point precisely on the head.
I am aware of these articles and as far as I am concerned they supersede any arbitrary decisions made at AGMs. Now either I am wrong (which could very well be the case as I am totally new to all this) or these screens (quite possibly both sets as both sets fail the tests you mention but for now let's focus on the second set) are illegal.
Walking around our town there are many sets of screens made from clear glass, clearly designed to shield the wind but protect views, but these are the first screens that I can find with totally opaque glass.
I think the specific situation is now very clear on this thread. I certainly can't explain it any more clearly, and you have supplied the relevant points of law. So I would be very interested to hear any further comments.
Subsequent to the recent AGM these points of law were supplied to the Administrator who let's face it should be very familiar with them. To date I don't know what he said and in addition to this comment we also await with great interest the set of minutes to see how he tries to explain the farcical argument that I created.
So the question remains, is what has happened illegal and what (if anything) can be done about it ? How should my neighbour proceed ?
The architect at the Ayuntamiento keeps saying he will make a visit to the site but never does.
Des
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