Henry FJ Bankes
5-17 Hammersmith Grove
Our Ref: PRM/MRO/CLUB/2/1
Club Los Claveles (“the Club”)
We are writing in response to your letter of 21st June.
The Club Committee have been trying to find cooperative ways of working with Ona/ WimPen to ensure that Club Owners are able to use their right to occupy their villas at Los Claveles. Unfortunately, it appears to our client that Ona Wimpen only want to work on their own terms. As you will see our clients have suggested that Ona/Wimpen advise the Club the amount payable for use of the Common Areas as defined in the Development Owners Statutes, but they have ignored these requests. The Arbitrator has indicated that he hopes his work will be completed by 7th July 2017, but given that Ona WimPen have ignored his awards to date, our clients fear this may not resolve the current situation.
Below are details of how the resort is managed and the current situation.
The Structure of Los Claveles
The resort known as Los Claveles is made up of three Parts: Los Claveles 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, by way of a letter written by Mr Pengelly, 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, in 2012.
The rules for each Part are different, The Club having a Constitution that is regulated by Scottish Law and Community 1 and DOA having different Statutes regulated by Spanish Law.
Each Part has their own Administrator as defined in their 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 has been a management contract with Wimpey and later WimPen with all of these constituents. Each section voted separately to award the contract.
In January 2015 Ivan Pengelly announced he had sold his company, WimPen Management SA to Onagrup and included in the sale was the resorts management contract. There was no prior notice to Owners or the Club Committee that he was selling the contract. Owners became very concerned following their research about Onagrup on the internet and the Committee became more concerned when Onagrup began introducing changes without consultation and not in accordance with the Club Constitution. In March 2015 WimPen were given 4 months’ notice of the termination of the contract. There was a vote by Owners at the 2015 AGM. The Club (85% of the Resort) voted to support the ending of the contract and the Community 1 voted to continue to have WimPen as the administrator. The contract with the Club ended on 31st July 2015. This resulted in there being two administrators for the Resort. The Club appointed Snr Hiro Bulchand as Administrator who works under the direct control of the Committee.
WimPen did not accept the contract had ended and so after a period of attempted negotiation the Committee took this issue and others to arbitration under Scottish Law. This process has taken longer than expected and WimPen’s contract, no matter what the outcome of the arbitration, came to a natural end on the 2nd May 2017.
The Club, at an AGM held in 2016 confirmed the appointment of Hiro Bulchand as Administrator for the Club. When it became apparent that the contract would definitely end on 2 May 2017 irrespective of the outcome of the arbitration, the Club held a further SGM in April 2017. All Club owners were made aware of the meeting and it had the highest number of voting Club members either present or by proxy in the history of Los Claveles. The vast majority of owners voted to once again confirm Mr Bulchand as administrator and for the Club to collect maintenance fees.
Members of the Club should be paying their maintenance fees to Club Los Claveles, not WimPen, whose contract, by their own admission has come to a natural end. WimPen under the Statutes for the DOA should be calculating the charges for the use of the Common Areas, which includes the staff salaries. This is different from the maintenance charge, but despite being reminded by the Club of this duty, WimPen have failed to do so, but have used the fact that owners have not paid them the maintenance fee to them as a reason to deny Owners the right to occupy their villas. The Club are willing to pay a reasonable charge for the Common Areas but have been denied the opportunity to do so.
For clarity, when villas at Los Claveles were originally sold, villas 14 to 33 and 83 to 86 were sold as Escritura. The rest, 1 to 13, 34 to 82 and 87 to 105 were sold as Club. Over the years since, some of the Escritura on resale were converted Club. Escritura owners’ maintenance payments are still managed by WimPen. If in doubt please contact Albert Fletcher, Chairman of the Club who will advise you if the villa is Club or not and whether the maintenance has been paid. Mr Fletcher has already written to you in order to commence a dialogue but you have not replied to him.
It is understood that Club Members have individual contracts with you when they have RCI membership. Now that you are fully aware of the circumstances it is expected that you will honour these contracts. We imagine RCI has no wish for members to take individual actions for compensation and the Committee would also wish to avoid this.
Given the above information, please can you explain:
1. Why RCI is denying Club Owners the right to bank their weeks with you when they have paid their maintenance fees to the legally appointed Administrator
2. Why RCI is consulting with WimPen when the Club has already advised you that their contract with the Club has ended.
3. Why RCI is apparently cooperating with WimPen in relation to other sanctions against Owners.
We look forward for a prompt response. We can provide documentary evidence of the above if so required.
For and on behalf of BTO Solicitors LLP