‘A Little Learning Is a Dangerous Thing‘
A small amount of knowledge can mislead people into thinking
that they are more expert than they really are.
Independent minded Club members who are opposed to the decisions made at Club AGMs have recently posted views on the status of the owners’ database, the actions of the Club Chairman and Committee and the recent case in the Small Claims Court in which an owner made a claim to recover maintenance fees paid to the Club. Their opinions have been proved to be wholly unfounded in each of the legal actions to date. All of the comments below are quoted verbatim therefore any grammar, spelling or punctuation errors are as they were written.
“I have also stated I believe the database doesn’t belong to the club.”
“However, with regards to the Data Base that was created by Wimpen and is under their control. I think you will find that no Personal Information can be divulged to anyone else without the explicit consent of the person whose Personal details are held within the Data Base. Unless there be a dramatic change and the Committee are able to generate their own Data Base they have no right of access to the Data Base at this time.”
If the database does not belong to the Club or the Club has no right of access to its details, why was it ruled at Arbitration that in data protection terms the Club was the controller of the data, that Wimpen was only the processor and keeper of the data at the order of the Club Committee and that Wimpen should return it to the Club? This ruling was later upheld at the Scottish Court of Session Appeal Court, ratified at the Spanish Supreme Court of Las Palmas, Gran Canaria Court and sent to the Arona Court in Tenerife for enforcement.
“Why didn’t the club keep a database most clubs do . 2 my personal opion is this when I bought my timeshare my details were given to wimpen only not to the club . 3 this dispute could end tomorrow if wimpen sent out tall
owners for an agm ect mr fletcher doesn’t want this ask yourselve why”
As stated above, the Arbitration ruling confirmed that the database legally belongs to the Club so in law the Club did keep a database. WimPen have no legal right to contact all owners on two counts. Firstly, they are no longer the Club’s Administrator as it was ruled at Arbitration that their contract expired in May 2017 therefore they have no right under the Club Constitution to call an AGM. Secondly, as they are no longer a legitimate processor or keeper of the Club database their use of it would breach Data Protection law. In fact they have already committed this offence in sending various correspondence and demands for maintenance fees to Club owners. This dispute could end tomorrow if WimPen obey the legal rulings against it and return the owners’ database, the Club funds it holds and the Club property which includes apartment keys.
“What can one add to what is already been said? Only that now is the time to put a vote of no confidence in and put owners back in charge. It is so evident that the committee have been plotting and scheming for years to get thus far
and using us owners as pawns to get a means to their ends and agenda.”
“All owners must be contacted so that they have the Democratic right to decide on any issues surrounding the resort. When that question is asked of the Committee they always refer to paragraph 19.4 of the Constitution, …..which is illegal of course. Why is it illegal because All Owners did not have the opportunity to agree or disagree.”
The owners are in charge but not those that the independent minded members would wish to be in charge. The Committee has not been plotting its own agenda. Arbitration ruled that the Committee is legally constituted and that the AGMs it called were not invalidated by WimPen’s refusal to return the database. In fact, the numbers of owners voting at the AGMs exceeded those voting at any AGM held under WimPen’s tenure. The Committee has only ever acted on mandates given by owners at legitimate AGMs which attracted the highest ever votes.
“well.said, never a true word said how many other owner have been put in this position but kept quiet. And the question as to be asked is he targeting the older generation?. because the owners I talk to say there bought from.wimpen and will pay wimpen…”
The Arbitration hearing confirmed that “In terms of the Constitution, the affairs of the Club are to be managed by the Committee unless delegated to a management company……..” WimPen were only ever a management company appointed to undertake delegated tasks on behalf of the Club Committee. This did not confer on them any proprietorial rights in connection with any aspect of Los Claveles. It follows, therefore, that weeks bought via WimPen when they were the Club administrator were in law bought from the Club. Furthermore, the rulings in the Arona Court and the English Small Claims Court case ruled that WimPen have no right to demand or collect maintenance payments from Club owners.
“Mr Fletcher could have contacted this owner and offered to assist so he could have his holiday. He is supposed to be there to protect owners interests and support them……….He knows people can’t get on the resort without paying at the gate.”
“Once again we have Fletcher in his recent report making himself out as the Hero and pointing the finger at everyone else………. What is difficult to comprehend is why so many others seem to fall in line with his policies with the sole purpose of destroying others enjoyment and indeed attempting to destroy Los Claveles.”
“In response to Mr Fletcher last letter….he has forgotten that it was a club member that brought the claim. Someone that just wanted their holiday ……Rather than crowing about his success maybe he should think why an owner should feel so disconnected and used that they would bring such a case.”
Mr Fletcher is there to protect all owners’ interests. He has done this by obtaining a mandate from Club owners to prevent WimPen, as a redundant hired contractor, from usurping the democratically elected Committee and autonomously controlling Los Claveles. It is hypocritical to hold the Club Chairman to account for owners only being able get on the resort by “paying at the gate” because of WimPen’s illegal demands for payment. The illegality of WimPen’s action was confirmed in the case brought by the Club in the Arona Court, Tenerife. It is WimPen alone that is destroying others’ enjoyment and attempting to destroy Los Claveles Mr Fletcher’s report of the English Small Claims Court case did not attempt to portray him as a hero, claim any personal success or point the finger at others. It presented the true legal position by stating the Judge’s rulings.
In dismissing the claim against the Club, the Judge stated, amongst other things, that the claimant had been mistaken in bringing the case against the Club and that the true defendant should have been WimPen. It is true that questions should be asked why an owner should feel himself so disconnected and used to bring such a case. However, these questions should be asked of WimPen and their illegal actions. To justify this view, we should rely on the statements of the Small Claims Court Judge who confirmed that:
• Payment of maintenance fees were required under the Constitution to be made to the Club;
• The Club could not make a payment to the DOA without an invoice for a properly negotiated amount;
• Not making a payment could not prevent the legal entitlement of an owner to access and use his apartment;
• WimPen did not have a contract with the Club to provide any services and did not have any legal right to demand money directly from owners;
• WimPen did not have any legal right to prevent owners from accessing their apartments;
• The Club could not be held responsible for the actions of WimPen;
• The owner had taken the wrong defendant to court and should consider taking action against WimPen for demanding money and preventing use of the apartment without legal entitlement.
It is ironic that independent minded members supported this action expecting to inflict harm on the Club, and that the case was not only lost but that a devastating judgement was handed down which completely demolished WimPen’s position and the grounds for the independents’ support.
So to return to the theme of this article, why do independent minded members think that a little learning makes them more expert than an Arbitrator, two UK Court Judges and two Spanish Court Judges?