|Committee Response to an Owner’s Concerns, 15th January 2019|
|Due to a combination of circumstances the following concerns raised by an owner have taken longer than normal to investigate. Club President Carol Parkinson discussed them at the time by telephone with the owner who wishes to remain anonymous.|
The concerns and the Club Committee’s response are sufficiently important to publish them now on the Owners Website so that all registered Club Members have the opportunity to consider them.
“From: Name withheld
Subject: Chairman’s Bulletin Board
Date: 18 June 2018 at 15:24:40 BST
To: Carol Parkinson
Cc: Roger Barrow
It is with heart felt sadness that I am putting my feelings in writing after reading your report back of the 16th June 2018.
We all bought in to Los Claveles with retirement, good holidays, Wimpen’s good reputation and the fact the resort was recognized as gold crown, even back in the early 1990’s when I bought.
I, like many others, have and still are sitting on the fence. However when things started to be publicised about the arbitrators full decisions, did I think now was the time to jump off, due to becoming increasingly concerned about the future of our resort and the decisions that the committee have taken upon themselves to enforce illegally on to all owners, and the comments contained therein, on the arbitrators ruling, stipulating the committee had no legal grounds to instigate this as Mr Pengelly did not have to inform them of the sale to Onagrp. As the arbitrator confirmed Mr Pengelly had dedicated numerous years to the resort, along with Wimpen and now Onagrp, with no evidence to substantiate your accusations.
Therefore I feel it is a complete injustice, and very unprofessional, that Mr Fletcher and yourself, along with committee members, continue to discredit Mr Pengelly with all the achievements he has to date made, Wimpen and furthermore Onagrp, with no substantiated accusations, but still you continue to do so.
Due to all that is contained within your Bulletin and Mr Lovatt continuely branding about that owners should read the constitution – has raised more concerns than answers for me. This is due to accusations that are both legally incorrect and factually untrue, along with being non substantiated. It has been widely publicised that owners wishes are for you to let the lawyers determine the outcome of this and then it will be established for all to see who is in the wrong. I find it highly unprofessional of Mr Fletcher and yourself to continue to do this when you could be quite easily had up for slander and defamation of characters, and in continuing so to do, setting an example for committee members and owners to do the same. Which is legally quite unacceptable. I have expressed this purely from my positions held and the legal knowledge that I have obtained. You are discrediting where no discredit is due or no evidence to substantiate the same as ruled by the arbitrators, so you are all treading on dodgy ground. Therefore as an owner, and the fact that you are supposed to be conveying the owners wishes, I along with numerous other owners would ask for it to be stopped.
Mr Fletcher, yourself and the committee have left yourselves wide open to speculation due to your non transparency and non accountability to owners, no matter how you try to justify it, which I will come on to later, especially after being advised you are running with an illegal constitution.
I will for the sake of Los Claveles reveal my positions held. I was a treasurer for the lib dems. This role has many responsibilities. But most importantly the compiling of a monthly report to show where all monies received have come from. There are legal limits as to what procedure to follow as with banks, clubs, associations, etc, no one is above the law. After all money laundering is a serious offence, which we have been opened up to. It is law that owners should be made aware of, before all monies are received where the money is coming from, on both gifts and loans and vote as to whether the said people are somebody they wish to be involved with the resort etc. etc. Also relevant checks have to be made as to where the money is actually being made available from on some amounts.
During my involvement I was also secretary. With both of these roles, comes legal training, with it being mainly covering constitutions. This is due to misinterpretation happening, which did happen whilst I was treasurer, which lead me to get involved at length with a guy that writes them for a living and has to fully integrate in to them the Acts behind the law.
Unfortunately a lot of misinterpretation does go on.
On one of the arbitrators rulings it stipulated he could not rule on it, the reasoning behind this, he is not above the law, the only people able to decide on this, is all and it has to be all for the law to be up held, as pointed out the constitution at the moment has been changed to say owners not all, which is totally unlawful. So all owners have to legally vote, he could not take away owners legal rights, which the committee have. The ruling was all for this very reason and he knew to date that had not take place and added at the next agm. It was not on the agenda, it was not put to all owners, which to date has not happened, and it is not a justification to say the club cannot abide by this. It is law and so has to be done.
Therefore on these grounds the original contract still stands as he ruled. It has been noted that between constitutions the committee have taken out all to try and unlawfully get round this, which I pointed out to you Carol on the phone.
Therefore no matter what arguments, justification, excuses or defamation of characters you use the contract still legally stands.
With regard to illegal blocking of votes. I have had this legally checked. All that is required to verify and to confirm the said person is the name, villa number and week. You cannot say a form is incorrect when you have not stipulated it is a requirement for the address to be so filled in, which I believe would break data protection laws, as it is an individuals sole right so not to supply if they so chose. Furthermore it would have to have a highlighted star so pointing out the same as do all other organisations, so that individual would have the choice to comply or not risking the consequences. Your form just says to help so cannot be
incorrectly filled in.
Furthermore, you legally have to put a box by all items for an owner, to have his legal right to vote on a voting form, being both yes and no. Your failure not to fulfil this legal requirement, does not mean you can block forms that have put an x, where a box should be.
So in both those instances, the validation of those forms stand and should have been counted.
In a club situation and for all owners to have their legal say, in line with a lawful constitution, you are in breach of this law on numerous occasions, and still doing so although it has been written and verbally pointed out to you.
Because the committee cannot fulfill their legal requirements your justification for this cannot be passed back on to us owners to justify your illegal activities in blocking an owners right to vote, either.
Early on in my career I also worked alongside solicitors and was therefore not only government trained on accounting, but also dealt with civil matters and find your post highly amusing, as I find it hard to believe that the police, with limited resources would launch an investigation in to a legal civil matter, it is totally outside of their jurisdiction too.
Therefore on these grounds I find it very hard to believe that the police would act on an unsubstantiated accusation that is legally going through the courts. This is totally illogical and a matter for the courts to decide, as to whether your claims on proxy votes are true.
With regard to the letter that was not read out at the agm, I am the said person. I find your excuse/justification here, more than hilarious, I have been at numerous agms etc. It is the sole responsibility of the chairman to read such correspondence out, it is matter of course for it so to be done. Especially seen as the correspondence was addressed to him/you and sent to each of you.
In fact Mr Fletcher on receipt of the same, actually liaised with you and then you telephoned me, with my husband present. I advised you why the constitution was illegal, my background and access to a guy that writes them for a living and that this constitution cannot be used if all owners had not voted on all the amendments from the original one to date, which is a legal requirement, along with it being sent to every owner, to which you have failed to comply with legally, on all accounts.
Another legal requirement, before amendments are sought to constitution, which obviously has to be on the agenda, a full explanation behind the same, with the legalities as to why. Mainly I explained my reasonsing behind this is the full explanation of wanting the Ltd Co. You explained like ever other explanation, done extensive research and I therefore enquired what other resort is run like this, to which you couldn’t provide one. This immediately made my alarm bells ring, in all research I have done, this would have been the first place I would have started at.
The Club, being Mr Fletcher, yourself and the committee claim you own, there is a lot of us that would like to enquire in to what exactly you are claiming here and can we be shown the title deeds or contract to as to what the club actually does or does not own.
Now with regard to the accounts, unless something is on the agenda, which filing these micro accounts were not or any other excuse or justification that does not qualify legally for non production of full accounts, which is a legal statutory obligation at an agm to be published and sent to all owners, it is not something that can be voted on. Nor being told they are not for us to worry about or that nobody has asked for them to be audited. This is something that Companies House need to be made aware of.
With all that is going on also, it is really apparent, that you are not willing to abide by the law, which my email proves you are in breach of on numerous occasions, in future and with all that has been pointed out to you, and the current situation, again it is going to be put to you for an independent body to deal with agms, etc. It is not a question of costs, but being transparent and accountable, which to date has not happened.
On having this all checked out, it was furthermore brought to my attention it is law that things that are not on the agenda for the agm, so that all owners can have a vote on it, cannot be put to the room to be voted on. You are also in breach of this on numerous occasions.
In summary I find The Club are accusing Wimpen/Ona to be wrong, The Trustees, RCI and everybody else wrong, discredited them, defamation of characters, breach of owners legal rights, wasted a vast amount of money that has not been officially/legally voted on, opened us up to money laundering, illegal constitution, in breach of laws and the list goes on and on.
ENOUGH IS ENOUGH.
I have copied Roger Barrow in, due to his position and representing us owners, due to his trying to ensure our best interests unlike The Club, are of the utmost importance.
COMMITTEE RESPONSE BY ROGER LINDSAY
Your e-mail sent to Carol Parkinson has been passed to me as I am the Club Committee member currently dealing with legal matters. I have also addressed other issues raised by you elsewhere.
I must apologise for the long delay in getting a response to you.
You asked a number of questions and made some statements which I will answer.
Like the rest of the Club Committee members, I bought time at Los Claveles for a relaxing holiday in the sun.
You make a number of references to the Club Committee breaking the Law but do not cite which specific Laws have been broken. Similarly you refer to “accusations that are both legally incorrect and factually untrue along with being unsubstantiated” without stating what these accusations are. This makes defence against your words more difficult as the Club Committee do not know exactly what wrongs you accuse them of perpetrating. I can only state that the Club Committee works within the law, the Club Constitution and the truth.
By the way, your use of language is incorrect, e.g. if you write something it is libel not slander.
The Arbitrators decisions and Orders.
The main crux of the Arbitrators orders was not just that WimPen give the Club Committee the members register (Sic Database). The Arbitrator made a number of findings and orders, some in favour of WimPen e.g. The Contract could not be ended without agreement from all three parties as there was no arbitration clause in the Confirmatory Agreement (however the contract with the Club was not renewed when it came to its natural end on 3rd May 2017), and that Ivan Pengelly remained a founder member (founder members were removed from the Club Constitution in 2016 by a majority vote of Club members). Other findings of the Arbitrator were in favour of The Club, e.g. The General Meetings called by the Club were legal, the Club Committee members elected at these meetings were legally appointed, the Members register and the Club assets to be handed back by WimPen to the Club. It was clear that WimPen are therefore not entitled to keep any copies of the Members Register as they have no longer a contract with the Club. A full copy of the Part Award can be read on the Club Owners website.
The Arbitrator did state that Mr Pengelly had the right to sell his company and the contract with Los Claveles. The Club Committee have always agreed he had the right to do this but as there was a management contract with the resort, he had a moral obligation to inform the owners of his plans, just like Wimpey did in 1998. The Arbitrator stated in his report that this change was not well handled.
It was Club Members who pressed for the Club Committee to take action following the sale of WimPen to Onagrup. The Club Committee has always sought the approval of Club Members for actions it has taken and thus far has had a large majority of Club Members voting either in person or by proxy in favour of what has and is being done on their behalf. The reasons for WimPen’s contract being ended were clearly stated in the letter delivered to Mr Pengelly on 31st March 2015.
The Club Committee along with most Club Members thought that Ivan Pengelly and WimPen were doing a good job at managing Los Claveles. However with hindsight it became apparent that how this was done was not as above board as Club Members and Owners would have expected. Examples are that all contracts were passed to family members, with no quotes sought for the work (eg the new kitchens fitted). Also, the Deed of Adaption filed in response to the change in Law in Spain was not presented back to the next AGM as agreed at the previous AGM. When it was examined much later, subtle changes had been made to the version of the Club Constitution that WimPen had filed with the courts in Spain, attempting to give more power to ‘the Company’ (WimPen). The biggest deception was WimPen sending out to all Club Members copies of the Management Agreement attached to the Constitution implying it was in force, when it never was as they in fact relied on a “Mandatos” (the confirmatory agreement).
WimPen’s contract was still in force until May 2018.
This is completely wrong. All participating in the Arbitration agreed that WimPen’s contract with the Club came to a natural end on 3rd
May 2017. This included WimPen. The Monies invoiced by the Club were and are legal.
Owners had to vote on the termination of the said contract at the next AGM.
Nowhere does it say this in the Arbitrators report. The Arbitrator ruled that the Club did vote to end the contract in 2015 but this could not be enforced via the Management Agreement as this agreement was not used, nor by the confirmatory agreement as it did not have an arbitration clause and so could not be looked at in the Arbitration.
Voting at the 2018 AGM
It was clearly stated on the Club Website that proxy forms needed to be fully completed including address for them to be valid. Also, the registration form had to be completed fully. The Club Committee under the constitution have to maintain a Members register. This was an opportunity to ensure that Club Members information was up to date and accurate. The latest Data Protection Law places great emphasis on organisations having accurate data.
Owners having a right to vote no.
I can only assume this is referring to not having an ‘against’ box for the Club Committee member election, as this was the only place on the form where there was not one. The Club Committee decided to do away with this practise as in no other UK election that we know of are votes cast against someone standing for election.
Some proxy forms were declared invalid because either they were not completed fully or they were not verifiable. The Club’s Scottish Solicitor was present and stated that those proxy forms, which were allegedly submitted by various companies were “legally incompetent”. They were all completed in the same handwriting, despite being from companies scattered around Europe. Albert Fletcher, as Chairman of the Club, has written to these companies at the addresses given to him by Ana Martin. So far two letters have been returned as “not known at this address”. None of the others have replied. The weeks listed for most the companies related to cancelled weeks. Both Ivan Pengelly (in a letter to all owners) and Ian Crane (in an e-mail to Committee Members) stated these weeks belong to the Club. They were sold without the permission of the Club Committee which the Committee view as theft. This matter is being looked at by West Midlands Police.
WimPen have not taken away our legal rights.
The Club Committee can give many examples of where WimPen have taken away Club Members legal rights. These include:
* Making Club Members pay again to use their right to occupy their villas when they have paid the legally appointed administrator for the Club.
* Writing threatening letters to Club Members saying they will cancel their ownership or call in debt collectors if they do not pay WimPen.
* Failing to Calculate the Common Parts Service Charge as they are obliged to do as Administrator under the Statutes for the Development Owners Association.
* Failing to advise the Administrator of the Club of what this charge is.
* Failing to comply with the Arbitrators orders, reiterated by the Judge hearing the appeal in the Court of Session, Scotland.
* Selling cancelled weeks without the consent of the Club Committee.
* Extensive information has been published about OnaGrup’s previous track record, all of which is referenced so that Club Members and Owners can see where the information came from. You can find this on the Club website.
Legal action was endorsed by all the Club’s general meetings held since 2016. There was overwhelming support from those present or voting by proxy at these meetings, and the meetings had the highest representation of member weeks in the history of the Club.
You state that the Club Committee have put owners at risk to money laundering laws. How is this the case? All loans have been made by people who own weeks and who are known to the Club.
Those present at the meetings endorsed the Club Committee’s decision not to publish the accounts. However, those present received a presentation from me outlining what the Club Committee had spent the Club’s money on. The Club Committee also gave an undertaking to present fully audited accounts to a general meeting for approval once the dispute is over.
Changes to the Constitution
The Club Constitution itself defines how it can be changed. A copy of the latest version can be found on https://www.losclavelesowners.eu .
The Club Committee recognise that all Club Members, entitled to vote, should be invited to General Meetings and that is why the Members Register exists. In the past the responsibility for maintaining this was delegated firstly to Wimpey Leisure Management and then later to WimPen by the Club. However, under both UK and Spanish Data Protection Law, the Club Committee are the Data Controllers, i.e. the Members Register belongs to the Club Committee. WimPen have continually refused to hand the members register to the Club Committee despite being ordered to do so by the Arbitrator, making it virtually impossible to invite every Member to General Meetings. The Club Committee have put together as full a list of Members as possible and this is being added to all the time. The Club Committee is aware that as a result of WimPen’s illegal action it does not have a hundred percent of Members details available, however Clause 19.4 of the Club Constitution allows for omissions that are not deliberate. Therefore, the Arbitrator ruled and the Scottish judge upheld that meetings held by the Club Committee were legally called.
On the basis of legal advice, the Club Committee have proposed the advised changes to protect members such as yourself and the changes made to the Club Constitution were voted on at Club General Meetings and met the criteria defined in clause 16.4 that was current at the time. It is not the case that the Club Committee just changed the constitution, it was voted on by Members. At the last few Club General Meetings more Members have voted than ever before in the history of Los Claveles Club meetings, illustrating that, despite your remarks, the majority of Members with whom the Club Committee have contact want the changes and it is their vote that brings about these changes.
During the Arbitration process WimPen tried to bring in case law relating to other organisations but the Arbitrator ruled that the rules that applied to the Club are in the Club Constitution and it is these that define how the Club should be run. The Club Committee have always followed the Club Constitution.
You seem to want to ignore this Club Constitution. This states clearly that Members are obliged to pay the Club Administrator who is Mr Bulchand. WimPen are no longer Club Administrators. They admitted their contract ended on 3rd May 2017. This has been reinforced by the findings in the court in Arona in December 2018, i.e. that WimPen should not be collecting maintenance payments for weeks owned by Club Members.
Forming a Not for Profit Limited Company
It is a matter of public record (with references provided on the owners’ website) that unincorporated clubs like Club Los Claveles are open to unlimited financial risks that they would not be under following incorporation as a company limited by guarantee. The whole purpose of this common-sense change is to protect the Club and in particular its members. The change will put power into Club members’ hands, not the Club Committee’s hands as the company will belong to the Club Members.
Not reading out your letter at the 2018 AGM.
Nowhere in the Constitution does it stipulate that letters addressed to the Chairman must be read out. To read it out was at the discretion of the Chairman with no obligation to do so. In this instance Mr Fletcher as your Club Chairman chose not to read out your letter. In the past Mr. Pengelly was selective about reading out letters, so this practice is not unusual.
Who Maintenance should be paid to
The Club Constitution is clear that Maintenance should be paid to the Company named in the Constitution. This is Club Los Claveles Limited.
The Development Owners Association statutes state in Article 8 that their Administrator shall as soon as reasonably practical calculate the Common Parts Service Charge … It then goes on to define how this should be calculated. In 8.3 the statutes state that “the Administrator shall as soon as the Common Parts Service Charge and accounts have been approved by the Annual General Meeting serve upon the administrators of the communities….. a demand for payment of that proportion of the Common Parts Service Charge due…..” This would be to Los Claveles Community 1 (the Escritura Owners) and to the Club Administrator, Hiro Bulchand.
WimPen/Onagrup as the Administrator for the DOA have so far not done this despite requests from the Club Chairman. Mr Fletcher wrote to Ivan Pengelly three times requesting this charge be calculated so that the Club could contribute a fair charge to go towards running the resort and paying the staff, but Mr Fletcher’s letters did not receive even an acknowledgement let alone a response.
So, the Club Committee are more than willing to contribute to the running of the resort but need to be told how much to pay. They cannot just send a guessed amount of money.
Financial Information and Accounts
At the recent AGM’s those Members present have supported the Club Committee’s view that it is not wise to publish the financial position of the Club whilst the Club is in a legal dispute with companies whose stated aim is to run the Club out of money.
However, all present were given a presentation by me on what the money the Club has received has been spent on.
Similarly, it is legal for companies to file micro accounts, which is what Club Los Claveles Ltd has provided Companies House with.
The Club Committee has given a commitment to publish fully audited accounts once the dispute is ended.
The Trustees and RCI
It was agreed in 2012, whilst Mr. Pengelly was the Chairman, that the trustees FNTC would be given notice and changed to Hutchinson. FNTC accepted this notice and asked to be paid half the costs of the transfer, which was paid. They still have not completed the transfer 6 years later. The Club Committee has subsequently found out that FNTC are not independent of Onagrup as they have several shared financial involvements. FNTC continue to not obey the Deed of Trust.
RCI state they are neutral in the dispute, but then behave in ways that are not. E.g. until recently the call centre for RCI was still giving out biased advice on who to pay and other information that was incorrect (eg the Arbitration appeal was still undecided) which when the Club Committee complained about this, they have promised to correct. They appear to still favour those members who pay Club maintenance to WimPen over those who pay Club maintenance to the Club, which the Club Committee do not see as behaving as neutral.
The Club Committee hope that you will hold WimPen to account in their failure to comply with the Statutes of the Development Owners Association.
To summarise, the Club Committee contest what you have written as it is not backed up by facts or by what has been written in the Constitution or in the Part Award issued by Mr Malone, the Arbitrator.
If there is anything else in your letter that you think I have not answered please let me know your concerns, ideally with clear evidence to support your concerns.
The Club Committee hope that once the legal processes are ended, all owners will be able to relax in the sun, in the knowledge that Los Claveles is run for the benefit of owners and not for the profit of a company.
Club Committee Member
15th January 2019