|Open letter from the Club Chairman to Mr. German Castro|
|Dear Mr. Castro|
I am writing in response to your letter of 11th May 2017 which I found to be full of errors, statements that did not fit the facts and omissions. You appear to be trying to discredit my reputation by making these statements. I set out below the facts that relate to your letter to all owners.
The structure of Los Claveles
The resort known as Los Claveles is made up of three parts: Los Claveles 1 Community – Community 1(approx. 15% of the villa ownership), Club Los Claveles – the Club (approx. 85% of the villa ownership) and Los Claveles Development Owners’ Association – DOA which manages the Common Areas. Both the Escritura for the Common Areas and the Escrituras for the Club Villas are held in trust for the Club by the Trustees. FNTC were discharged as Trustees in 2012, but to date have not yet transferred anything to the ‘new’ appointed company Hutchinson, despite being paid a transfer fee, as agreed by the Committee, which included Mr Pengelly.
The rules for each part are different, The Club having a Constitution that is regulated by Scots Law and Community 1 and DOA having different Statutes regulated by Spanish Law.
Each part has its own administrator as defined in its Constitution or Statutes with differing duties and responsibilities. Wimpey, and later WimPen, has been the Administrator of all three parts for most of the time the resort has been in existence. There is nothing in any of these rules that states that there can only be one single Administrator covering all parts. Mr. Ivan Pengelly stated at the joint AGM held in 2015, when the motion to end WimPen’s management contract was carried by the Club, that the resort would be having two administrators: one for the Club and one for Escritura owners and the DOA.
Nowhere is it stated that any administrator of the Club should have “a valid contract with the Los Claveles Community of Owners”. In fact, one of our owners has been requesting in writing from Mr Pengelly a definition of this term “Community of Owners” and how it relates to the three parts of Los Claveles. Unfortunately, this owner has not received a satisfactory response to date.
The company Club Los Claveles Ltd is a UK not-for-profit company for the benefit of all the Owners, unlike your company. I do not benefit from it personally.
Under the old Constitution, the Club Committee was made up of 3 ordinary owners each one being elected for a three year period together with two Founder Members. This was set up by Wimpey Homes Holdings when the Club was created. When WimPen took over the role of administrator in a management buyout, Mr. Ivan Pengelly continued in that role with various other people over time. It was only when Mr Pengelly attempted to replace Jesus Monedero with Jenny Thompson that the members of the Club Committee at that time asked WimPen to produce legal evidence of the transfer from Wimpey of that role to prove that they were in fact Founder Members. In reply to my letter requesting that you provided proof of Founder Member status you said on 10 September 2015 “I refer to my decision not to attend two committee meetings called by you for 1 September 2015 and the 27 July 2015 and refer you to my letter 25 August when I gave a complete explanation of the reasons for not attending.” You then go on to say “You will shortly receive proof that I and Mrs Thompson are Founder Members’’. As no evidence of that has ever been produced to the Club, or to others the committee has stated that they would not invite Mr Ivan Pengelly and Mrs Jenny Thompson to Club Committee meetings until they were able to legally prove they were entitled to be there. This is why they were not invited to the committee meeting that was arranged for the 2017 Special General Meeting. On seeing your letter, your statement that Mrs Jenny Thompson was not aware of the meeting etc. elicited the response from her that she had only attended one committee meeting in the past in an advisory capacity, and had had no further request for contact with the committee from Mr Ivan Pengelly since. She stated: “I was extremely surprised and shocked to see my name used in this way” (in your letter to all owners).
Under the new Constitution the outdated notion of Founder Members has been removed.
Clause 16.2 of the Constitution states “The Committee may call a meeting at any time and must upon a request in writing from the holders of not less than ten per cent in number of the Membership Certificates call a Special General Meeting of the Club to be convened and held in the manner prescribed for Annual General Meetings save the fourteen days’ notice only shall be necessary”.
The committee received a written request for the meeting from more than 10% of Membership Certificate holders, as you well know, as these were displayed at the meeting on 22 April 2017 and pointed out to your legal representative who held proxy votes so he could attend.
You have misquoted clause 16.2 in your letter.
The Constitution does state that all members should be given notice of a meeting, but Clause 19.4 states that “The accidental or unavoidable omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings of that meeting and the accidental omission which was deliberate but arose out of or was connected with an honest but mistaken view of law or fact by any officer of the Club.”
The Club Committee invited as many Members as it had contact with, including Mr Pengelly and (Ona) WimPen. (Ona)WimPen has yet to hand over the Members’ Register despite being ordered to do so by the Arbitrator. You neglected to mention this in your letter. This makes it impossible for the committee to invite all members, but it does its best. This is covered by clause 19.4 as mentioned above. Mr Pengelly informed those we had no details of in his letter to all Owners, so all members were in fact made aware of the meeting by Mr Pengelly himself.
Thus in my view the meeting was valid and included a total voting power of 817, the highest number for any meeting held for the resort despite (Ona)WimPen’s attempt to restrict access to Members.
The decision to suspend as Members of the Club without right to vote
This decision was made by the committee, not at the SGM. However, the Members at the meeting showed unanimous support for that decision. This was only applied to those Membership Certificates held by (Ona) WimPen, Onagrup, any other companies owned by them and those held by employees of those companies and Mr Pengelly. As you have not given the Club access to the Members’ Register, I cannot comment on your assertion that this is a considerable proportion of the owners.
Clause 11.5.4 states that:
“At any time to cancel or suspend for a reasonable period of time the membership of any Member who in the reasonable opinion of the Committee shall have committed a substantial breach of the provisions of this Constitution or any Bye-Laws or Regulations hereunder or whose conduct in the opinion of the Committee shall be wholly unbecoming to a member of the Club and who has not remedied the breach of conduct complained about within a reasonable time following a written request by the Committee for him to do so………….”
You were given the committee’s reason for your, and others’ suspension, which included amongst others, failing to hand over the Members’ Register, failing to pay the €125,000 award of Club money ordered by the Arbitrator despite being asked in writing to do this. You will see that 11.5.4 is not just limited to failing to pay maintenance fees as you misquote in your letter.
To appoint a new Administrator of the Community of Owners
I do not understand this phrase, as The Club got approval to appoint a new administrator of The Club at the Annual General Meeting held in September 2016. This occurred well before the suspension of voting rights. The Constitution was followed carefully at all times, and I resent your false allegations, damaging my good reputation.
To start collecting maintenance fees directly
You fail to mention that (Ona) WimPen’s management contract ran out by Mr Pengelly’s own admission on 2nd May 2017, irrespective of the outcome of Arbitration. It is illegal for (Ona) WimPen to collect fees beyond this date. At the 2016 AGM of Community 1 and the DOA it was pointed out that Mr Pengelly, as administrator of the DOA under Statute Article 8.2, should produce the Common Parts Service Charge. I wrote to Mr Pengelly on 26 April 2017 requesting this so that the Club could pay money to keep the resort functioning. You were copied into this letter. You have omitted to mention this in your letter.
The legal expenses incurred by the committee have been approved by owners at recent Club AGM and SGMs.
I have pointed out to owners that they should pay their maintenance fees to the Club administrator, as defined in the Constitution, and no information given to Members has deviated from the Constitution.
Real possession of the property of Los Claveles
You appear to claim in your letter sent to all owners that (Ona) WimPen owns Los Claveles. As mentioned earlier as defined in the Deed of Adaption registered with the Spanish Authorities, the Escritura for the Common Areas is owned by the Club which makes up 85% of the ownership of the villas.
The Constitution, both old and new, states in clause 11.5.4 that owners failing to pay the maintenance charge levied by the committee can result in cancellation of their ownership. You misinterpret article 8.5 of the Statutes of the Community of Owners, where you deny access to owners to the whole of the resort due to lack of service charges made. In fact, all owners maintain the right to occupy their villa when they have paid their maintenance fees.
Appointment of administrator
I do not question the validity of the Annual General Meeting held on 10th September 2016 and do not understand why you state this. At the 2016 AGM Club Members mandated the committee to appoint a new administrator as this was needed before (Ona) WimPen’s contract ended naturally on 2nd May 2017. The appointment is NOT subject to Arbitration or to any future official meetings as you falsely claim.
I do not understand why you describe this as an amicable process, when (Ona)WimPen has failed to comply with orders made by the Arbitrator to pass to Club Members their Members’ Register and €125,000 of their money for legal expenses. Arbitration is taking place under clause 20.2 of the Constitution and this has nothing to do with the Statutes that you quote.
Once the decisions and orders of the Arbitrator are made, it is up to the Club and its members, who are entitled to vote, to decide what course of action should be taken. It is not the responsibility of the management company, whose contract has expired, no matter what the outcome of the Arbitration process.
Nowhere does it state in the Constitution or Statutes that all three parts of the Resort of Los Claveles have to agree the same administrator.
It is not illegal for the Club to appoint its own administrator and collect maintenance fees.
WimPen has never produced any documentation proving that it holds the status of Founder Members. Wimpey Home Holdings have no account of ever having transferred such rights to WimPen/ Mr Pengelly.
Every owner was made aware of the Special General Meeting so it was valid.
The Club Committee has the right under the Constitution to suspend your membership of the Club due to your ‘unbecoming’ behaviour. Preventing owners who have paid the Club from occupying their villas further compounds the need for that action.
The Club Committee is rigidly complying with the rules set out under the Club Constitution.
The Club Committee is willing to pay a reasonable agreed Common Parts Service Charge.
(Ona)WimPen does not own Los Claveles resort.
As illustrated above your letter is full of errors, omissions and incorrect facts which have been circulated to all members. I ask that this response be circulated to the same members by you.
Chairman, Club Los Claveles