12 January 2022 – Implications of DOA Statutes

Club Members will by now have read/heard that the Club lost the injunction hearing to prevent the latest general meeting of the DOA from taking place. It is important to state from the outset that the Club was advised by our barrister that we had a ‘slam dunk’ case, because it was all in the Statutes and the Law of Horizontal Property, the Spanish law which governs properties of multi-occupation such as Los Claveles. However, it seems much of our case was built on quicksand.

As ever the Committee worked within the constraints of the Constitution – the legal document that governs the workings of the Club – and where applicable the DOA Statutes. But, as previously, we have been totally misled by the late Ivan Pengelly, the man Club members respected and liked for 25 years.   

Within the framework of the Constitution, and with legal advice, an  injunction was commissioned to stop Onagrup acting illegally.

Within the English language version of the DOA Statutes dating from 1989 it clearly states in Article 11.1 that changes can only be voted on at an Annual General Meeting, not the Special General Meeting as called by Onagrup. No Club member has ever seen a copy of these Statutes in Spanish dating from this time. Onagrup’s lawyer submitted to the injunction a copy of a Spanish document purporting to be the current DOA Statutes dated 1992. Again, no Club member has ever seen this document. The minutes of the 1999 joint AGM make no reference to it, as claimed by Snr Castro at the SGM. In fact, the minutes of that meeting state they are working well and there is no need to change them! These 1992 Spanish Statutes do not contain the word ‘Annual’. They were produced in the name of Ivan Pengelly. All of this is very suspicious, however, the Judge said he had no reason not to trust the evidence and the statement presented to him by Onagrup’s lawyer and ruled that the 1992 Spanish version of the Statutes applied. The consequence of this was that Club’s challenge based on the English version of the DOA Statutes was overruled. (By the way, Onagrup’s lawyer is the same one who gave evidence in the first arbitration and said that the Club’s Register of Members held by Wimpen Onagrup could be provided to the Club for the purpose of a holding a general meeting. Both the Arbitrator and the Club trusted this lawyer’s word, but when it came to requesting the Register for that purpose it was refused by Onagrup.)

Our case for an injunction was strengthened under the Law of Horizontal Property (LoHP)which states that the vote for changes to the Statutes must be UNANIMOUS. The meeting on Sunday deviated from this. A considerable number of votes were cast against the changes to the Statutes and the resolutions were passed on a 2/3rds MAJORITY basis, NOT on a UNANIMOUS basis.

Equally important, the LoHP states that such changes must be discussed by the individual communities at the Resort i.e. ‘The Club’ and ‘The Escritura Community’ before being taken to the DOA.  Again this did not happen on Sunday.  As ever Onagrup has ridden roughshod over the law and over the legal rights of the majority (84%) of owners of the resort who are Club members.

The legal document (the Constitution) that is supposed to protect Club members (us) has constantly been shown to be either lacking or doctored in such a way as to expose us to what we are currently experiencing – ‘skull duggery’.  Mr Pengelly constantly referred to the Constitution as his ‘bible’ and yet it has let us down on more that one occasion.   The most glaring example during this dispute is that according to the Constitution, the outcomes of arbitrations are ‘Final and Binding’.  Acting in good faith, with legal guidance at all times, the Committee however finds, very late in the day, that this is not the case.

The outcome of the first arbitration found in favour of the Club and it was recognised by the Superior Court in Spain, but it requires a further court hearing in Arona to enforce it, Covid and the Spanish courts allowing.

All the action taken since the first Arbitration has logically followed on from decisions made by Arbiter Malone and based on Mr Pengelly’s Constitution – including the calling of general meetings and other proceedings, later deemed at a second arbitration to be incorrect and impugned.  In conclusion we now have a situation where the Club has been formally pulled into the DOA without any actual involvement or discussion of Club Owners.  Following Sunday’s meeting Club members are now – we are told – subject to the Statutes.  Statutes which in a number of instances are in direct conflict with the Club’s own rules, as contained within the Constitution. 

Club members need to be very clear about the implications of decisions taken at Sunday’s DOA Special General Meeting.  Decisions previously taken in the first instance by the Committee on owners’ behalf and agreed at an AGM will disappear.

Significantly Ona’s promised villa refurbishment first proposed in 2015 and blocked by the Committee on the grounds of lack of tendering transparency, poor quality of furniture, etc. and exorbitant cost will now, Onagrup promise, commence almost immediately and in ‘Ona’ style, not our style.

A perfect example of the ‘Ona bulldozer’, and their lack of consultation on ‘our’ resort, is the highly secret sum spent on the refurbishment of the Manager’s house with it’s the poor domestic quality fixtures and fittings, etc.
Albert Fletcher

12 January 2022

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