|Correspondence with Club Member Mrs M Gladwell|
Mrs Gladwell recently wrote to the Club Chairman and copied her email to Trustee FNTC and Roger Barrow, purported President of the Los Claveles Development Owners Association. The Club Committee has taken the decision to reproduce the correspondence here to give our members the opportunity to judge for themselves whether the claims she makes are justified.
On 12th March 2019 Mrs Gladwell wrote:
Dear Mr Fletcher
Further to your email of the 7th of March 2019, regarding collection of maintenance fees for 2019/20, please be advised that it is with deep regret that I cannot / will not pay an invoice that has been illegally raised as explained below.
In the first instance, the Club cannot provide this service. It is outside of the objective defined for the Club, in the constitution, deed of trust, administration etc, issued to myself on purchase, in the early 1990’s, which is a legally binding document. Furthermore in the said document, it clearly defines, the Club cannot be the administrator and further clarified. The trustees have been made aware of this. With this said, Hutchinson’s have declared that Fntc are acting trustees not themselves. Copies of correspondence can be forwarded to you on request.
Secondly to provide this service you need a tourist license, which the Club does not hold and is the reason why RCI, cannot recognise payments received by yourselves and Wimpen have to verify they have received payment.
On to the Club, the written objective, is for it to guarantee, on payment of maintenance fees to the administrator, entrance to Los Claveles. With your illegal practices you are therefore going totally against the very nature that the Club was set up for and therefore not acting in owners best interests, and on these very grounds should be asked to step down.
All the other legalities that have been breached to support the vote of no confidence are too numerous to enter in one single email, and the grounds for you to step down, but are being produced, I am lead to believe.
With all this said, as advised by Hutchinson’s, themselves, a copy of this email will be forwarded to Fntc, as acting trustees and Roger Barrow, being president of the DOA, to make sure further action is ensued.
Furthermore RCI confirmed I was loosing trading power, earlier this year, and I have already paid Wimpen on RCI’s instruction to have it fully restored for 2019, which as an owner is in my best interest, as I bank and use canal time, as our dog is permitted to come with us.
All aforementioned documentation can be produced to confirm RCI have restored and banked my week.
With regards to your statement concerning rulings, I think this might be factually incorrect or unenforceable, due to the legalities you have breached.
On 22nd March Committee member Roger Lindsay replied:
Dear Mrs Gladwell,
I have been asked to respond to your e-mail to Mr Fletcher, the Club Chairman. I find your e-mail contains unsubstantiated facts and misunderstandings of Club Los Claveles’ current situation. I will address the situation in order of your e-mail.
You state that the invoices issued by the Club for Club Owners weeks have been “illegally raised” and that “the Club cannot provide this service”. You say that “It is outside the objective of the Club” and you refer to the Constitution, Deed of Trust issued to yourself in the early 1990’s. When my wife and I purchased our Club weeks in 2014 from WimPen, we were given and signed a purchase agreement.
Attached is a redacted copy of the forms my wife and I signed when we bought Club weeks from WimPen. When you purchased Club weeks from Wimpey you will have signed documents similar to one or both of these forms.
On Page 1, item number 2 states:
2.) I/We understand the obligations stated in the Club Constitution and agree to adhere to these. The current fee is …. Euros per week plus water & electricity if applicable.
And in the Purchase Agreement 1. it states:
… has admitted as a Member of Club Los Claveles, Asomada de Los Ceres, Los Cristianos, Tenerife (“the Club”) with the benefit of but SUBJECT TO the rights and obligations and upon the terms and conditions therein contained (a copy of the Certificate(s); Constitution: Deed of Trust and Management Agreement being annexed hereto are expressly incorporated herein and form an integral and substantial part of this Agreement).
If you signed one or both of these documents, this means that you have agreed to abide by the rules of the Club and this forms your contract with the Club. Wimpey may have been the vendor of the weeks on behalf of either themselves or another owner, but this part of the contract specifically refers to the Club.
The current Club Constitution is set up under Scottish Law and it, as well as previous versions, all state in Clause 4. that “the Club shall be a non-profit making Club whose objects is to secure for its Members the ownership of exclusive rights of occupation of the apartments for specific periods in each year until the dissolution of the Club.”
Under Clause 12. Members are liable to pay maintenance fees under the Management Agreement.
The Club is not the Administrator. This position is held by Sr Hiro Bulchand, who is based in Spain but has worked extensively in Tenerife. The Management Company is Club Los Claveles Ltd which is a UK registered company with a Welsh address. This is owned by the Club and has no directors who charge fees.
The Trustees should be Hutchinson. FNTC were given notice by WimPen in March 2012 and asked to transfer the trusteeship to Hutchinson by 1st December. This was supported by the AGM at that time. FNTC have yet to do this. The Club Committee currently have a case before the Scottish Court of Session to force FNTC to handover to Hutchinson. The Club Committee and their Scottish legal team have been working with Hutchinson to produce the correct documentation to present to the court.
Companies who operate in Spain need a Tourist Licence. As stated above the Club have a
Constitution under Scottish Law and the Management Company is UK based. The Club Committee has taken legal advice and a Spanish Tourist licence is not needed to collect maintenance fees in the UK.
The Club Committee has had long discussions with RCI over the present situation, and RCI claim to be neutral in the dispute. They will issue ONE compensation week for RCI members who have paid their maintenance fees to Club Los Claveles Ltd and not to WimPen. WimPen block weeks not paid to them on the RCI system so RCI are unable to use these weeks.
The Club Committee are working hard “…to secure for its Members the ownership of exclusive rights of occupation of the apartments …” It is being prevented from doing this by WimPen, whose contract ended in May 2017 by their own admission to the Arbitrator. This is why the Club Committee has pursued various court cases so that Members can use their timeshare weeks in the way they choose.
You accuse the Club Committee of illegal practices without stating what these exactly are and you are making false accusations not supported by facts.
The Committee understand that you own one Club week at Los Claveles. If you had paid your maintenance fees to Club Los Claveles Ltd you would have received a compensation week from RCI, under their agreement with the Club Committee.
Regarding Legal Rulings so far, the Club Committee on behalf of Club Los Claveles Members have achieved the following:
1. The Club won the most significant part of the Arbitration in Scotland in so much as:
a. The Club Committee members were declared to be legally appointed.
b. WimPen’s contract had come to a natural end.
c. WimPen should return the Club Members Register to the Club Committee.
d. WimPen should hand back the Club Funds, which are currently held by WimPen in a combined Community account, to the Club Committee.
The 2016 Constitution referred to in the Arbitration was an annotated copy that referenced all the amendments made to the original 1990 Constitution at subsequent AGMs. This was used to demonstrate that WimPen had changed the Constitution regarding the name of “the Company” without following due process of putting this change to an AGM. It was that Constitution that the Arbitrators decided to reject. It does not refer to the Constitution subsequently voted in by Members on 10th September 2016. A copy of the Arbitrators report can be found on the Website. https://www.losclavelesowners.eu/index.php/lco-key-documents
2. WimPen’s appeal to the Court of Session was rejected by the Judge hearing the case who upheld all the decisions contested by WimPen.
3. The recognition of the Arbitration has been declared valid in Spanish Law by the Superior Court of Justice in Las Palmas Gran Canaria. This was despite Onagrup/WimPen’s solicitor trying to argue on various technical points including that the British Foreign and Commonwealth Office had not endorsed the decision correctly and appearing to want all the issues raised in the Arbitration reheard. All Onagrup/WimPen’s legal submissions were rejected by the Court. This court has referred the Arbitration to the Arona Court in Tenerife for enforcement which is the correct legal procedure in Spain and what the Club Committee expected. No doubt Onagrup will raise similar objections to the enforcement.
4. The Club took WimPen to Court in Arona, Tenerife (WimPen did not, as their solicitor claims, take the Club to Court) to stop them demanding a second payment from owners who have paid Club Los Claveles Ltd, before they were allowed to use their right to occupy. The Court found in the Club’s favour but the decision is subject to appeal.
WimPen have appealed and our solicitor has filed papers responding to this appeal. Our Spanish solicitor has expressed the view that WimPen, by ignoring this court decision, are in contempt of court.
The Club Committee note that you have downloaded the professionally translated version of the court decision in Gran Canaria from the Owners Website which was set to ‘view only’ and you have shared it with others. This was set as ‘view only’ as it is confidential information and should only be read by Owners and not by others. Why have you done this with a confidential court document?
The Committee are not aware of any legalities that you allege that they have breached, that will prevent the legal rulings being enforced. The Committee are delighted to report that the UK Financial Ombudsman found in favour of an Owner claiming back credit card fees demanded by WimPen, and that PayPal found in favour of Club Los Claveles Ltd when an owner tried to claim back a payment made to the Club, when their claim, in the Club Committees view should have been made against WimPen.
The Club Committee cannot see why any Owner should be advocating to pay WimPen, who have no contract with the Club (not since May 2017) and who have been deemed to be acting illegally by the Courts in Scotland and Spain and who continue to fail to support the Club Committee who have Owners best interests at heart. The Club Committee understand that your view is that the Club should not be invoicing Owners as the Club cannot guarantee Owners will be able to use their weeks. To not invoice would be giving in to WimPen’s illegal behaviour and bullying tactics. The ideal solution is for WimPen to comply with the statutes for the Development Owners Association by calculating a fair Common Parts Service Charge and advising the club of this. The Club Committee have frequently stated they are willing to pay this. The Club Committee will continue to pursue WimPen through the courts to allow Owners who have paid the Club to use their time at Los Claveles.
You may share this response to your e-mail to Mr Fletcher with others that were copied in as the Club Committee will be posting your e-mail with this response on the Owners Website without restrictions. As you have already shared this correspondence we do not consider this to be confidential.
on behalf of Club Los Claveles Committee
The redacted Purchase Agreement attached to Roger Lindsay’s response