FACT FILE 1 (07 June 2018) – Background to the Litigation

Los Claveles consists of three separate communities: Timeshare (Community 1 (Escritura), Club Los Claveles and the Development Owners Association (non residential)

The resort is governed by the Spanish Law of Horizontal Property (LoHP).

In addition, Timeshare Community 1 and the DOA have their own governing Statutes and the Club has its own governing Constitution which provide the legal basis upon which the communities function, consistent with the LoHP.

There are 106 residential properties, 24 of which originally formed Timeshare Community 1. The remaining 82 formed the Club Community. Resale of Escritura weeks and conversion to Club has reduced Timeshare Community 1 to an estimated 15% or less of  total weeks (5250).

WimPen took over the management of the resort from Wimpey, the original developer in the late nineties. In turn, WimPen was sold to Onagrup in January 2015

Club Members voted to end Onagrup’s contract at the June 2015 AGM. Onagrup refused to accept this, and rebuffed subsequent attempts by the Club Committee to negotiate a way forward, so the dispute was taken to arbitration in March 2016 to be resolved.

After a much longer than anticipated time, the Arbitrator concluded in August 2017 that the three-way agreement that WimPen had constructed with the Escritura, Club and DOA communities, in addition to the separate management agreement with the Club, took precedence, and it had no arbitration clause. He concluded that because of this the Club’s contract with WimPen could not be terminated. Despite having reservations about this conclusion, the Club Committee accepted it as part of the final and binding nature of arbitration.

The Arbitrator also concluded that Mr Pengelly was the sole remaining founder member of the Club Committee; that the Committee was legitimately formed; and that all of its actions, including democratic decisions taken at general meetings to change the constitution and replace WimPen as Club Administrator and remove founder members, were legitimately taken.

Onagrup appealed against the Arbitrator, and lost the appeal in February 2018. Onagrup was given 28 days to comply with the Arbitrator’s orders to withdraw from Club administration and return all of the Club’s property including money, management and financial accounts, and the membership register to the Club Committee. It has failed to do so. 

Onagrup has illegally continued to operate as Club Administrator following the expiry of the three-way agreement mentioned above in May 2017, quoting a conflict with Spanish data protection law that prevents them complying with the Arbitrator’s order to return the membership register to the Committee, and practical difficulties in complying with both the LoHP and the Arbitrator’s order to split the resort’s joint account into separate community accounts. All of these matters were taken into account by the Arbitrator. Onagrup is therefore in contempt of the Law Society of Scotland’s arbitration process in not complying with the Arbitrator’s orders. This is dishonourable conduct given that Onagrup agreed to be bound by  the conditions of arbitration at the outset and subsequently reneged on them, thereby removing any basis for future trust. 

Club members have voted overwhelmingly at general meetings since June 2015 to remove Onagrup from Club administration. The Arbitrator acknowledged that Onagrup’s prevention of the Committee from reaching all Club Members by withholding the membership register was beyond the Committee’s control and did not infringe the Constitution. 

Legal action to enforce the Arbitrator’s orders following the appeal court ruling in February 2018 is currently going through the Spanish court system. 

Legal enforcement action is also being taken to remove FNTC as the Club’s Trustee, and to replace them with Hutchinson. Owners should be in no doubt that FNTC is just as dishonourable as Onagrup, and that the two organisations are working together to pursue their own ends rather than look after owners’ best interests.

Further legal action is being taken by the Club Committee against Onagrup for denying Club Members their right to take part in voting for the election of DOA President and Administrator at the DOA AGM on 6th May 2018, as well as many undemocratic practices against the LoHP that rendered the meeting invalid.

The Club Committee also discovered at the 2018 Club AGM on 28th April that Onagrup illegally purloined over 1000 cancelled weeks belonging to the Club and disposed of them unlawfully to a number of different companies. This is being investigated with a view to prosecuting Onagrup for grand theft of Club property, in addition to cancelling their membership of the Club for making no effort to comply with the outcome of arbitration. 

A serious irregularity with Onagrup’s proxy votes was also discovered, and this is being investigated with a view to prosecution.

RCI is showing discrimination against Club Members who have legally paid their maintenance fees to the Club by restricting their rights to full deposit and exchange facilities, as a result of Onagrup’s influence.

Onagrup continues to illegally demand maintenance fees with menaces from Club Members by threatening to cancel their membership, which only the Committee can do. This is fraud and deception. 

Owners should also note that Onagrup’s contested election of 6th May 2018 to Administrator of the DOA does not give them any authority to collect Club maintenance fees. Only the elected Club Administrator Hiro Bulchand can do this. (The limited company ‘Club Los Claveles Limited’ was set up in 2015, in anticipation of the new Administrator taking over from Onagrup, to collect maintenance fees from which to pay the common parts service charge required to operate and manage the resort, and to support the refurbishment of the resort. Onagrup’s refusal to withdraw from Club administration, and their refusal to abide by the law and issue invoices to the Club for the common parts service charge, has made it impossible for Hiro Bulchand to take on his new contracted role.) Any claim by Onagrup in letters demanding payment from Club Members that the DOA role gives them authority to collect Club maintenance fees should be challenged by members. The DOA Administrator is only authorised to collect the common parts service charge from the Escritura and Club Administrators in order to fund the running costs of the resort. Onagrup is guilty of misrepresenting the facts by claiming that maintenance fees collected by the Club are not available to pay the common parts service charge. It is their own failure to follow the correct procedure that is responsible for this, and this in turn is explained by the fact that they would have to acknowledge the legitimacy of Hiro Bulchand as the Club Administrator in order to do things properly, and that is something they will never do because it destroys their reason for being. They are guilty of deception and completely lacking in integrity.  The eyes of Club Members are firmly on Mr Barrow who was elected to President of the DOA (contested) on 6th May to show his integrity by addressing this deception. The fact that a whole month has gone past without any evidence of this is answer aplenty. 

Club Members who are frustrated with the time it is taking to remove Onagrup will hopefully realise that the responsibility for this lies with the Arbitrator who took an inordinately long time to issue his report, and with Onagrup who have shown that they will only comply with the law when they are forced to do so, regardless of the stress and inconvenience they are putting owners through for the sake of their mistaken belief that they have any right to do what they are doing. To give in now to Onagrup’s intransigence and bullying would make no sense when justice is clearly on the side of the Club. We must do the right thing, and finish what we have started, for the sake of the resort’s independent future beyond the reach of Onagrup. Rather than allow our resolve to weaken because of human frailty, now is the time to redouble our combined efforts to get the job done.

AEJF Signature

Albert Fletcher

Chairman, Club Los Claveles

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