|Club Los Claveles Chairman’s Update January 2017
|To all Club Los Claveles Members
(Copy for information to Escritura Owners)
Over the period of the dispute with OnaWimPen, and particularly since arbitration proceedings began, owners have contacted me, and other members of the committee, to question decisions made and to query the outcome of the actions taken. Over the past 12 months I, and the committee, with the help of supporters have tried very hard to keep owners up to date with what is happening. Whilst these have been welcomed by most there are some owners who have complained about the frequency of these communications and have asked to be removed from the email list. Despite the numerous communications we have made, which are all available on the owners’ website, some common issues continue to be raised with me in person, on the website and on the owners’ Facebook page. I will attempt to recap on some of these as requested by some owners. I apologise to those who are already aware of some/all of what follows, and for the length of this update because of the wide range of issues that have been raised.
Update on arbitration proceedings
As you will have seen from my last briefing on the 18th December nothing has changed and the arbitration proceedings have not yet been completed. The timescale is not within our control but it is hoped that we will have the Arbitrator’s final ruling by the end of February. I am, therefore, still bound by the confidentiality restrictions imposed by the Arbitrator. This includes all matters pertaining to the proceedings other than the matters he has already ruled on, which are:
The June 2015 AGM was found to have been adjourned.
Carol Parkinson remained a Committee member after the June 2015 AGM.
WimPen’s application to rule the January 2016 SGM and September 2016 AGM illegal was refused.
WimPen was ordered to hand back the Members’ Register to the Club Committee.
WimPen was ordered, and this order was then upgraded to an interim Award, to pay €125,000 to the Club Committee from Club funds to cover legal fees past, present and future.
Why can’t owners see the Arbitrator’s rulings for themselves?
The Arbitrator’s rulings are communicated only to the legal representatives of both parties involved. They are not available from the Law Society of Scotland for Club members to refer to independently. However, when the arbitration case is concluded I will seek to provide Club members who wish to see for themselves the decisions that the Arbitrator has made with the appropriate confirmation.
What will happen after arbitration?
I have been asked to comment on what will happen depending on possible outcomes of the proceedings but I am unwilling to speculate on this. Suffice to say that the committee has considered, and is prepared for, a range of possible outcomes and the implications. A regular question posed has been ‘What if OnaWimPen continues to refuse to carry out the orders made by the Arbitrator, as it has already done with regard to handing over the Members’ Register and interim award of €125,000?’ In this event further legal action would, sadly, be necessary to enforce the orders made. Whilst this is frustrating, the process is made easier because of the standing of Arbitration orders and awards in any court of law, and we will apply for the costs to be awarded to us.
Request to the Arbitrator to release Club funds
The application to release €125,000 from Club funds was made to cover the legal costs of arbitration, as well as the cost of legal action taken prior to this process being implemented. Contributions to the legal fund, via donations and loans, covered the early costs but unfortunately not as much was raised from owners as we’d hoped through these methods. Regrettably, the majority of owners chose not to contribute despite being in favour of the action. Without the funds to pay the legal costs we would have had to abandon the proceedings, despite the initial rulings made by the Arbitrator being in the Club’s favour.
As we enter this final phase of arbitration it remains of vital importance that we continue to receive financial support from owners. We need this support to conclude the arbitration case and take any further action necessary to enforce the Arbitrator’s orders and transfer the Club’s Trustee to Hutchinson. Without members’ financial support at this critical stage in the proceedings we will have lost any attempt to influence Onagrup as our Constitution has been our only protection. Please play your part in ensuring that this does not happen. Even a small donation for each week owned would make a difference if everyone contributed. Larger amounts in the form of a loan would be even better. Loans will be repaid against maintenance if we are successful. Details of how to make your contribution are on the owners’ website https://www.losclavelesowners.eu or contact email@example.com.
If you win, or when OnaWimPen’s contract expires in May, who will be the new administrator?
At the Club AGM in September 2016 the new proposed Administrator, Hiro Bulchard, was introduced via a Skype link. In view of the way that the dispute has developed it was necessary for the committee to identify a new Administrator to take over from OnaWimPen, in the event of the Arbitrator finding in our favour. The contract will only be awarded in the event of a successful arbitration outcome, which includes transfer of information and access to our accounts. The resort staff will not change as they are employed, and paid for, out of resort funds.
How will we work with OnaWimPen if we win our case?
This is going to be a challenge given the way that events have unfolded. There will be two administrators – one for the Club and Onagrup for Escritura and the Development Owners Association (DOA). The Escritura owners awarded Onagrup an annually renewable 3-year contract at the 2015 AGM, despite this being illegal in Spanish law. The new Club Administrator will be tasked with communicating with OnaWimPen.
Will there be an owners meeting before June 2017?
I have no plans to call a meeting until the outcome of arbitration is concluded. As you are aware I have no control over this. I will call a SGM as soon as possible after this date in order to advise owners of the the outcome of arbitration and to discuss the issues we then face.
Is the dispute a personal vendetta?
Some owners have implied, and others have asked me, if the dispute with OnaWimPen is a personal vendetta against Mr Pengelly. This is most definitely not the case. The dispute has raised a number of concerns that we were previously unaware of. These include aspects of the past management of Los Claveles under Mr Pengelly. The sale of the contract in itself was not the cause of the dispute. (See FAQs The Dispute with OnaWimPen). Our grievance was not with Mr Pengelly himself, as we respected his right to sell his business to whoever he chose. We were, however, disappointed that he decided to do this without making the committee aware of his intentions, in confidence. It was also his duty as Administrator to advise and support the committee on such a major change. The dispute began as a result of Onagrup’s behaviour with regard to managing the resort and to your elected members, for whom it had no respect (See FAQs – The Dispute with OnaWimPen). Onagrup continued to employ Mr Pengelly as part of the sale agreement. It chose to make him its’ lead person in discussions with the committee and owners which is why the dispute may have appeared at times to be ‘personally’ aimed at him. This arrangement provided the illusion of ‘no change’. On a personal level I have been saddened by this course of events given my longstanding relationship with him, and his relationship with Los Claveles and its owners. I would have hoped for a managed transition of administration when the time came. This has not been possible with Onagrup, who he chose to sell to. (See FAQs – Onagrup).
Why did you not inform owners of recent changes within WimPen?
I was asked by an owner, who had heard that Ivan Pengelly and Ian Crane were resigning from their roles within WimPen, why I had not informed owners of this development. The answer was simple – at the time I had not been informed, unlike the owner who asked the question. As soon as I was told officially by Mr Pengelly of these changes I made owners aware of them via the website.
Why do you need the Club database when you clearly have one of your own?
Some owners have questioned why we need the Club database to be handed back to the committee as it appears we already have one. The owner information we now hold has been compiled by owners giving us their details over the period of the dispute. Although we have details of over 1200 owners it is not the comprehensive list. Very few non-UK owners are included. Also, OnaWimPen no longer has the right to hold the database since its management contract was terminated. The database/membership register is the property of the Club and has been administered for the club by the management company – it is not its property.
Is it true that you don’t want anyone under 18 on the resort?
This is not the case. On the contrary, maintaining Los Claveles as the family friendly resort is one of the things we are trying to preserve in this dispute. However the Constitution states that one person in each villa must be 21 or over. The booking policy introduced by Onagrup uses booking agencies, such as Booking.com, that do not apply this restriction. This means that younger groups, or individuals, can rent accommodation at Los Claveles where none of the occupants are over 21. If we feel this requirement is not necessary we need to change the Club Constitution, not just flout it.
Concerns about accounting at Los Claveles
I have been asked to clarify various aspects of the way that the accounts for Los Claveles have been managed. There are 3 distinct parts to Los Claveles – the Club, Escritura and the Development Owners Association (DOA). The Club and Escritura are accommodation units owned by individuals under either the Club system or Escritura. The DOA is responsible for managing the common areas. The documentation we have indicates that the common areas are the property of the Club. At Los Claveles the monies for each of these 3 communities has always been kept in a single bank account. We now know that this should never have been the case. On realising this, in March 2015, the committee instructed its Spanish lawyer to tell WimPen to separate the accounts. At the Escritura / DOA AGM held in May last year the meeting also instructed OnaWimPen to separate the accounts. OnaWimPen did not do this and in maintaining a single account continues to act illegally. This has complicated the release of Club funds as the 3 accounts are still combined.
Is it true that OnaWimPen has been acquiring additional weeks?
Mr Pengelly first admitted to committee members at a committee meeting in 2014 that he had ‘taken back’ weeks from owners. Without the Members’ Register we have no way of knowing how many Club weeks have either been ‘taken back’ or bought by OnaWimPen. We do know that between the 2015 and 2016 Escritura AGMs OnaWimPen increased its ownership of Escritura weeks from 35 to 70. This doubled its voting rights. We are very concerned about this, which is why the committee took the decision not to ratify ownership of these weeks to prevent OnaWimPen outvoting ordinary members at future AGMs. There is also provision in the Spanish Law of Horizontal Property to prevent single owners of a large number of weeks, such as OnaWimPen, having undue voting power at AGMs.
Preventing ‘unconstitutional’ rentals
I have been asked what the committee can do to stop OnaWimpen, or anyone else who owns a significant number of weeks, from renting their property via agencies that do not comply with our Club Constitution. This includes underage groups. The answer is that the ages of occupants can be checked on check-in, and action will be taken on site by the resort manager to address any complaints about anti social behaviour. Their weeks will be blocked and the booking agencies advised. Only booking agencies that will comply with our booking policy will be used.
OnaWimPen has brought in new business to the resort and the Club cannot survive with only the older generation, how will it survive?
OnaWimPen claims to have increased rentals under its management. Without access to the records we do not know if there have been financial benefits to Los Claveles. Onagrup’s rental policy allows for renting individual nights, booked in advance. (You can check for yourself on Booking.com). This may have reduced overall rental income. Also the increased admin charges it introduced means that OnaWimPen gets a greater proportion of the rental income than under WimPen’s management. The Committee will ensure there is an effective system for sales and rentals that operates within our Constitution. We have not been given any information from Onagrup about resales. We would embark on an active sales programme to encourage an ‘ownership’ culture at Los Claveles.
Do I, and the committee, want/intend to run the Club?
Definitely not! As Chairman I am unpaid and will continue to be unpaid. Any money I, or committee members receive, is only for legitimate expenses incurred as a result of my/our roles on your behalf. Neither myself, nor any other committee member, has any wish to undertake the day to day running of Los Claveles. That is why we employ an Administrator and a resort manager. The committee’s role has always been to act as the owners’ representatives in dealing with the management company. This is still the case but the role has had to change as a result of the behaviour of the new management company. Onagrup began to introduce unconstitutional changes to the rental policy. It refused to listen to your elected members when they tried to point this out. This required me, as the Chairman, along with other committee members, to take a more proactive role to ensure that we maintained control of Los Claveles. This was new to us as previously we had always been able to sit down with Mr Pengelly, and other WimPen staff, to discuss issues. They recognised their role as our management company and understood our role as the owners’ representatives. Not only were Onagrup staff not prepared to listen but they only ever communicated in Spanish making discussion and negotiation even more difficult. As the dispute has continued it has been necessary for myself, and committee members, to continue to plan and take action to try and regain control of our Club. This has required legal action (Arbitration) as per our Constitution. I have undertaken this confrontational role with a heavy heart as it is not how we have been used to working but I take my responsibilities as Chairman of the Club very seriously. Had I not had the support from the majority of owners we could contact I would not have taken the action we have. The dispute has taken a personal and financial toll on myself, and my family, but whilst I continue to hold the position of Chairman I feel duty bound to keep fighting for the rights of Club members.
The legality of the actions taken
I have been challenged by a small number of owners regarding the legality of the action taken. I wish to confirm again that the actions taken by the committee since the dispute began have been supported, and in some cases required, by the Club constitution. I accept that not all owners agree with the actions, or the dispute itself, but decisions have been taken, or ratified, at legally constituted SGMs or AGMs by the majority of owners. This is how decisions have always been made. It is OnaWimPen that has failed to act legally by refusing to accept the decisions of such meetings. It also arranged meetings that it was not authorised to do. This required the committee to seek Arbitration. The behaviour of OnaWimPen is also questionable when it fails to abide by the legal rulings of the Arbitrator in handing over the Club database and Club monies
Data protection issues
A number of questions have been asked about this topic. The arguments presented by OnaWimPen for not handing over the Club database/register have hinged on it being a breach of Spanish data protection laws. This is not true as the database/register belongs to the Club and is administered by the management company. The Arbitrator has ordered OnaWimPen to hand over the database/register which it refuses to do. As OnaWimPen is no longer the Administrator it has no right to access or use the Club database/register and should have handed it over. A new Administrator, when appointed, will have the same role and be registered accordingly. Although there is no legal requirement, the Club is now also registered under the Data Protection Act in the UK and I am the Data Controller.
I understand that there has been some conversations on the owners’ Facebook page regarding the quality of the wi-fi since the new system was installed. The general consensus seems to be that there is little, or no, improvement in the connectivity. We understand that the wi-fi on the resort is now provided from Onagroup’s server, which is routed via Barcelona. Details of any new contract that OnaWimpen may have entered into for internet services are unknown. These changes were made without authorisation by the committee, or Escritura owners. Another example of OnaWimPen overstepping its authority. People have asked whether the Club will be bound by a contract if it regains control. Unfortunately, the committee is not aware of the terms of any contract, and it is a shared service with Escritura owners. It is therefore not possible to make any further comment at this stage. Any queries need to be addressed directly to OnaWimPen.
Owners regularly contact the committee to ask who they should pay their annual maintenance fee to. Many have queried why the advice has been to continue to pay to WimPen as set out on the back of the invoice. As with many other issues the committee sought legal advice about this matter after OnaWimPen’s management contract had been terminated at the 2015 AGM. We were advised to continue with the arrangements to prevent owners incurring a levy for non or late payment. There is also a need to ensure that WimPen still has the money to run the resort until the transfer of administration. We are not happy with this arrangement, as it means that we cannot access any of the Club’s money. The decision is in no way an indication of trust or faith in OnaWimPen, which should have respected the decision of Club members to transfer to another administrator. If there is any change to this you will be notified immediately and advised of the new arrangements.
Why are the names of the ‘volunteer’ owners supporting the committee not made public?
In addition to the elected committee there is an ever increasing number of owners who volunteer their time, or expertise in specific areas. They have offered their services to deal with many of the time consuming tasks that have been required. This has included tasks such as responding to emails/queries sent to the firstname.lastname@example.org email address, research, website information and maintenance, and contacting/mailings to owners who do not use the internet. Without these individuals your elected committee would not have been able to function effectively during this dispute. As these are volunteers undertaking tasks on behalf of the committee, I made a decision that these individuals would remain anonymous to ensure that they did not get drawn in and subject to some of the personal attacks, and threats, that your elected members have had to deal with.
I hope that this update helps to clarify the issues that have been raised during the course of the dispute with OnaWimPen. The next update will be to inform you of the outcome of the arbitration proceedings which will include the implications for the Club, whatever the outcome. I would like to thank owners for their ongoing support and look forward to achieving a positive outcome from arbitration allowing us to move forward.
On behalf of the Committee of Club Los Claveles
January 18th 2017
If you have any questions you would like to ask, or comments you would like to make about this update, please email the Communications Team.