03 March 2021 – The Definitive Legal Position on Invoicing

03 March 2021 and updated 3rd April 2021

The following references definitively confirm that legally Ona WimPen is not the administrator of the Club, nor the acting administrator, and has no legal authority to send invoices directly to Club members for the collection of fees of any kind. That legal authority rests with Hiro Bulchand who was appointed by members to replace Ona WimPen as the Club’s Administrator from 3 May 2017, and to invoice members for their annual maintenance fees from that date, via Club Los Claveles Limited, a company registered at Companies House in the UK for the purpose of collecting these fees at the request of the Club Administrator.

1.  2016 Club AGM, 10 September 2016 – The appointment of Hiro Bulchand as the administrator of the Club

“Agenda Item 4: The Chairman called for the vote for the “Approval for the Appointment of Snr Hiro Bulchand as the Administrator”. The Chairman stated that if approved then a contract would be drawn up and executed at the appropriate time.
Total Votes in favour 819. Total Votes against 14. The Chairman announced the Resolution (4- Administrator) CARRIED.”

2.  The Development Owners Association (DOA) Statutes – These are the legal rules that WimPen as the  purported administrator of the DOA is required to follow. These rules define that WimPen is only authorised to collect the Common Parts Service Charge from the Club’s legally appointed Administrator, Hiro Bulchand.

“5.6 The Administrator of the Los Claveles Timeshare Communities will include the Common Parts Service Charge payable by members owning Undivided Shares [i.e. Club Members] in the Service Charge payable by such members pursuant to the Statutes of the Los Claveles Timeshare Communities and payment by the Administrator of the Los Claveles Timeshare Communities to the Administrator of the Association shall be a full discharge of the liability of such members to pay the Common Parts Service Charge to the Administrator.

8.3 The [DOA] Administrator shall as soon as the Common Parts Service Charge and Accounts approved by the Annual General Meeting serve upon the Administrator of the other Communities already constituted or to be constituted in the development Community a payment of that portion of the Common Parts Service Charge due and payable by Members having Undivided Shares [i.e. Club Members]”

Ever since the expiry of its administration contract with the Club on 3 May 2017 WimPen Leisure Management SA, as the purported 1 Administrator of the DOA, has failed to comply with its own statutes, and has ignored repeated requests from the Club Chairman for annual invoicing of the Club’s Common Parts Service Charge dues.This is a legally required step before the Service Charge dues can be collected.

Note1: The 2018 DOA AGM at which Ona WimPen was elected as the Administrator of the DOA was impugned [legally challenged] by the Club, on behalf of its members, in April 2019 and is awaiting a Spanish Court ruling, hence the term ‘purported’.

3. Spanish Provincial Court Appeal Judgment of 3 February 2020 (which was appealed by the Club on 5 March and is awaiting a final Supreme Court ruling) – Confirming that WimPen is only authorized to collect the Common Parts Service Charge and only from the Club’s Administrator, Hiro Bulchand.

“The defendant [WimPen Leisure Management SA] is entitled to collect the Common Area Service Fee from the members of the Club”
Despite this, WimPen Leisure Management SA as the purported Administrator of the DOA continues to invoice Club members for the full annual maintenance fee in contravention of this judgement. Legally, it is entitled only to collect the Common Parts Service Charge and only from the Club Administrator, Hiro Bulchand and has no legal authority to invoice Club Members directly for any fees.

3 April 2021 Update:
The Spanish Law of Horizontal Property (LPH) states “…Non-payment, however, does not entitle the administration to deprive any owner (or those who have rights derived from them) of the use of the property, since such a power is not provided for in the LPH.” The channel to be followed is regulated in Article 21 of the LPH, and is the judicial claim of the unpaid fees, as well as the possibility of depriving them of the right to vote in the owners’ general meeting. At no time does article 21 of the LPH provide for the possibility for a property owners’ association to deprive its owners of the right to use an individual property, except in the circumstances described in article 7 of the LPH (Harmful, annoying, unhealthy or dangerous activities), which is not the case here.

When the purported President of the DOA states that paying your fees through WimPen will guarantee access to your villa and contribute to the running costs of the resort what he is actually saying is that Wimpen is prepared to break the law by denying accesss to Club members who have complied with their constitutional obligation to pay their annual maintenance fees to the member-appointed, legal Club Administrator Hiro Bulchand, and to ignore its own legal statutes by refusing to invoice the Club for its members’ contribution to the running costs of the resort.  

He is misleading you by stating that WimPen is legally authorised to invoice and collect your maintenance fees. WimPen is only authorised to collect the common parts service charge from the Club on behalf of its members. You can check this for yourself by reading the translation of the Spanish appeal court ruling in the ‘Key Docs’ section of the owners website, item 19, page 4.

He is misleading you when he cautions you to beware of ‘look alike’ invoices from Club Los Claveles. These are the only invoices that legally can be sent to Club members on behalf of the Club’s legally appointed Club Adiministrator, Hiro Bulchand. As clearly stated above, WimPen is not authorised as the purported DOA Administrator,under the Spanish Law of Horizontal Property, to invoice Club members for maintenance fees, and the Spanish appeal court judgement confirms this. 

Still not sure? Why not ask the purported DOA President to back up his statements with evidence? Others have tried and been disappointed, but you never know, there might be a sudden outbreak of truth.

Meanwhile, the Club’s Spanish legal representatives are pursuing an appeal to the Spanish Supreme Court for the procedural irregularities that took place in the Provincial appeal court, but this will take time. Unfortunately, there is no other recourse open to the Club to stop WimPen which is hugely frustrating and unjust, but that’s not to say that legal action by individual Club members cannot be taken. 

Albert Fletcher
Chairman, Club Los Claveles

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