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On 15th March 2021, the owners of the Community of Property Owners El Soto de Marbella Club de Golf-Club Social listed below as present or represented met at 10:30 am on second call at EL SOTO RESTAURANTE in Ojen, having been duly convened, to hold an Extraordinary General Meeting, which was chaired by the President Ms Lisbet Kristensen, with Ms Laura Varela Lewenberg acting as Secretary-Administrator, to deal with the following AGENDA
The President thanked owners Presidents for attending the meeting, and informed them that a new owner, the company FRD ANDALUCIA 1 GmbH & Co. Kg, Sucursal en España, was also present. This is the developer that purchased the plot previously owned by Joya Verde, and which planned to start building a new community in the near future. The plot was represented by Mr Tony Parrado and by Mr. Jose Arteaga, the company’s lawyer.
The President mentioned that the Mayor of Ojen was also present, having accepted the invitation to attend the meeting.
Given that there had been many legal issues during the year, the lawyer Ms Marina Martinez had also been asked to attend in order to clarify matters of importance during the General Meeting.
Mr Ivan Waring requested that the order of the items of the Agenda be modified, and that item 6 be dealt with first.
Ms Lisbet Kristensen, Mr Bjorn Svensvik and Ms Laura Varela told him that was not possible, reiterating what had previously been confirmed in several emails sent prior to the General Meeting. The order of the items of the Agenda that was sent to owners with the notice of the meeting was maintained.
Prior to beginning the meeting, a request was made to clarify the share coefficients.
The Administrator stated that when Mr Emilio Moleon handed over the documentation, no explanations were given regarding the differences in the share coefficients of the plot which Taylor Wimpey finally handed over. This developer originally purchased the plot on which the communities El Bosque, La Floresta Sur and la Floresta de la Mairena are located.
At previous General Meetings, specifically at the one held on 11-11.2019, El Bosque had a share coefficient of 6.36%, La Floresta Sur had 2.60% and La Floresta de la Mairena 2.28 %. It was assumed that the other coefficients were assigned to the developer by the previous Administration.
Pursuant to the deeds and Statutes of each community, the total share coefficients of the communities were the following:
The Administrator pointed out that she had sent a report explaining the situation, since the previous President Mr Juan Rimbau and the Administrator had never received any documentation or explanations from Mr Moleon to substantiate the difference between the plot’s total share coefficient of 24.85% and the sum of the three share coefficients of the three communities in accordance with the deeds and Statutes, namely 21.28%. In other words, there was a difference of 3.57% which nobody could explain.
The area of the plots of El Bosque and La Floresta de la Mairena was the same, as well as their share coefficient in El Soto, 5.44%. However, the share coefficient that had been applied to the Community of Property Owners El Bosque since 2010 was 6.6%. For this reason, since no one could explain why 3.57% was missing, a decision was made to study the situation once again with the President and to recalculate the coefficients of the three communities in an equitable manner. The provisional result is the following:
The next step was the review carried out and explained in the report sent to all Presidents, in order to adjust the difference in accordance with the sole legal document found, namely the BOJA [official gazette of the Andalusian Regional Government] of 2005.
At the Annual General Meeting of 24th February 2006, item 4 of the Agenda was Presentation and approval of the share coefficients of Community members. The President and Administrator explained that due to the definite approval of the modification of the alternative regulations of the township of Ojen, which were published in the BOJA of 15th April 2005, the urbanisation’s coefficients would be altered, although no mention was made of modifying the Statutes. The 109,598.50 square metres published in the BOJA were accepted as the gross building area.
At the Annual General Meeting held on 9th March 2007, once again item 4 of the Agenda was Presentation and
approval of the share coefficients of Community members. Members were informed of the new coefficients
resulting from the study carried out with the Mijas Town Council, which would be sent to all of them. This time the
total square metres were 104,220.09.
Note: It was not the Mijas Town Hall, but rather the Ojen Town Hall.
The previous Administrator was asked for a copy of the detailed study referred to, in order to understand the problem in connection with the coefficients. This study was never sent.
The Administrator had contacted the Ojen Town Council asking for this documentation, but they had not found it. The Mayor, who was present, was asked about the document, and said that he was not aware of it, or in any case did not remember whether it existed. He added that the definite PGOU [General Urban Plan] had not yet been approved, that there were many irregularities that still have to be resolved, and that the information they initially used was the one published in the BOJA.
Mr Emilio Moleon intervened to comment that there was a detailed study, and that it was posted on the Ojen Town Council’s website. The Administrator informed him that in order to have avoided the problem, the right thing would have been to hand over the document together with the detailed list of information and original documents he had been asked to submit in the months of April, May and June by Mr Juan Rimbau and by the Administrator herself, original documents that were never delivered.
Given the situation, Mr Ivan Waring requested that the same coefficients used in the past continue to be used.
The communities Floresta Sur and Floresta de la Mairena disagreed because the coefficients used in the past do not correspond with the payments that have been regularised in order to calculate as realistically as possible the coefficients for the three plots.
Following a brief discussion, the President requested that the coefficients according to which each plot had paid its fees be approved, or otherwise the meeting would be cancelled.
Following another brief discussion, the majority of owners, with the provisional abstention of Mr Emilio Moleon (on behalf of Paul Cossin ) pending documentary clarification of the real situation of coefficients at a general meeting, approved the following share coefficients:
The total share coefficients of owners present and represented was 83.83 %.
Mr. Rens Zwanenburg left the meeting at 11.30 am, and Ms Ana Muñoz replaced him as proxy for the Community of Property Owners El Bosque.
Mr Jose Arteaga, the lawyer of FRD ANDALUCIA 1 GmbH & Co. Kg, took the floor and asked that his client be allowed to vote. He explained that they were aware of the legal issue of the debt that corresponded to the plot and that even though they were able to register the plot in a public deed, they had taken two other steps:
A brief discussion ensued, given that in accordance with current legislation, since there was a debt attached to the plot and at the time of purchase the new owner had not paid the fees for the current year and the three previous ones, it could not vote. Nonetheless, following this clarification, a vote was taken whether to allow the new owner to vote. Mr Bjorn Svensvik supported the proposal and asked the General Meeting to allow the new owner’s representative to vote. Following a brief discussion it was finally decided to comply with the provisions of the law, and to wait until the issue of the debt was resolved, regretting that the new owner would not be able to vote at the General Meeting.
The Administrator took the floor and explained that at the beginning of 2020, following an analysis of the documentation, the previous Administrator Mr Moleon was asked to hand over the original Statutes, in other words the original deed. He only provided a copy of said document, but not the original deed.
After consulting the Land Registry, it was clear that the Statutes had never been registered.
Mr Jose Arteaga confirmed that he had also asked the Registry if the Statutes were registered, and he had been informed that they were not.
Mr Emilio Moleon took the floor and explained that when the Community El Soto de Marbella Fase 1 was formed, which apparently was the first one, the Notary was asked to register the Statutes (protocol number 3184 - Notary Navarro-Rubro in Madrid ). The problem was that the Statutes were never registered. The previous Administrator, who held the office for many years, specifically from 2004 to 2020, should have verified that the Statutes were registered, and on the basis of the facts, it seems and can be concluded that he did not do so.
The Administrator mentioned that one of the tasks of an administrator was to have all the documents in order, in particular in the case of a deed, apparently the first one, which states that it has to be registered. Many years had gone by during which the matter could have been verified, and Administraciones Rodríguez was the administration that was working for El Soto when it was created, together with the sub-communities that belong to El Soto.
The problem caused by not having the Statutes registered is the effect this produces on third parties that do not belong to the Community. There is no doubt that the plots or communities that comprise El Soto have to contribute to expenses as indicated in the Statutes, but third parties who are not yet owners and do not have the public document (from the Land Registry) do not recognise this right, which had caused, for example, problems with claims filed to collect debts.
Mr Jose Arteaga confirmed that that was why he had paid this fees with reservations until the matter of the debt claimed from the previous owner was resolved, together with his client’s final decision.
Ms Marina Martinez intervened to explain that even though the Statutes were not registered, the new owner knew that there were facilities that required maintenance, for which each sub-community and plot had to pay in accordance with the established share coefficient.
Mr Jose Arteaga reiterated that his client had voluntarily paid the 1st Quarter of 2021, and that he did not owe any money. He added that the problem with the previous owner would have to be resolved, and reiterated his request to be allowed to vote. He was told that the matter had been discussed, and that it was not possible for his client to vote.
It was unanimously agreed that whoever was elected President and Administrator should urgently take the steps and formalities necessary to register the Statutes in the Land Registry and thus avoid problems in the future.
The Administrator informed owners that she had also sent a report explaining the situation prior to the General Meeting, which she summarised as follows:
The debtor balance provided by the previous Administrator on 01-01-2020 was 359,166.21 euros.
The previous Administrator commissioned the law firm Martínez Echavarría to file a claim against this company after it acquire the plot from Promogedesa S.A. on 18/09/2018. In consequence, in accordance with the company’s legal liabilities, a claim was filed requesting payment of the debt corresponding to 2015, 2016, 2017 and 2018. The amount claimed in court was 129,760.61 euros.
The remainder, in other words 194,184.92 euros, had to be allocated to losses because the period of limitations had expired. The Administrator informed owners that the new period of limitations was 5 years, and that debts that were not claimed within said period are lost.
The President asked why these matters had never been brought to the attention of the General Meetings at which the accounts were approved, and why no legal information had been provided regarding the situation of owners prior to Joya Verde.
Ms Lisbet Kristensen asked Mr Emilio Moleon why he only claimed 129.760,61 EUR in the lawsuit when the debt was 359.166,21 EUR and why he had never taken legal action if over the years he had requested approval of debts of 350,000 € for this plot. She asked him why he had not informed the General Meeting regarding what had or had not been done in respect to these debts.
Mr Moleon intervened, saying that Promogedesa had initiated voluntary receivership proceedings, which is why no legal claim had been filed. The current Administrator stated that many claims had been filed against companies in receivership proceedings, and that in several cases the debts were collected, at least partially. However, for the Administrator the most important issue was the lack of information and the fact that such a large amount of debt had been carried forward all these years without providing a correct explanation to members to inform them of the problem, and that said explanation was necessary.
Mr Bjorn Svensvik remarked that the situation was due to the lack of clarity in the presentation of the documents, to lack of a correct explanation over the years to enable the Presidents to request documents or reports substantiating the facts in order to make decisions. Unfortunately, it was impossible to know if these issues might have had better results.
Following a brief discussion, the majority of members resolved to allocate as losses 194,184.92 euros to Reserves, given that they can no longer be claimed. The communities El Bosque, Las Lomas del Soto I, El Soto de Marbella Fase II Fase 2 and El Mirador del Golf abstained.
Ex Grupo Mena - currently OGDEN : The Minutes state that the company GRUPO MENA filed voluntary receivership proceedings and that the Master Community filed a notice of appearance in the proceedings as creditor. The current Administrator was not given any information in this respect, and no documents were handed over substantiating that the Community had appeared in the said receivership proceedings.
The current owner, Mr David Graham Ogden, acquired the plot on 31/08/2018, and as far as the Administrator was aware, no legal claim had been filed against him for the debt.
No legal documents had been handed over in respect to this new owner, even though legal action against him had been approved at General Meetings.
The debtor balance provided by the previous Administrator on 01-01-2020 was 155,544.59 euros. At the date of the General Meeting, said plot had a debt of 176,853.79 euros.
Actions taken: a mortgage note had been requested and an official fax was sent to the owner notifying the amount of the debt. However, since the previous Administrator had not provided the former owner’s particulars for the purpose of notifications, the official fax was sent but not received. Mr Ivan Waring intervened and stated that he often saw Mr Ogden working on his plot, that the latter often went to El Soto and even had contact with Mr Paul Cossins.
The Administrator asked Mr Moleon why he had not done anything and why in all these years no legal action had been taken against this debtor, especially given that members of the Community that have contact with him knew the said debtor. Mr Moleon did not answer.
The Administrator pointed out that as soon as the Governing Board has the debtor’s legal address, a legal claim should be filed as soon as possible, since every year that passes is one for which the debt cannot be claimed.
Due to the fact that no claim had been filed against the previous owner – the receivership issue, the debt that could not be claimed due to the statute of limitations - the Community had to allocate as losses 84,735.04 euros on account of reserves. This item was approved by the majority of members. The communities El Bosque, Las Lomas del Soto I, El Soto de Marbella Fase II Fase 2 and El Mirador del Golf abstained.
The debtor balance provided by the previous Administrator corresponding to Altamira Real States on 01-01-2020 was 46,138.18 euros.
Actions taken: Emails were sent to the contact persons provided by the previous Administrator. There were no answers, and the emails were returned.
After several months, when the plot and registered property were finally located, a mortgage note was requested. The mortgage note showed that the owner that acquired the plot on 19-06-2008 is Centro de Equipamiento Zona Oeste S.A. and not Altamira Real State. Moreover, when Marina contacted the company’s lawyer, she was told that they did not really know where they had been paying their fees. The company Landcompany S.L. had transferred the amounts of 3,328.32 euros and 1,644.98 euros to the Vicario account. The gross fees provided by the previous Administrator were 9,074.30 euros, and the net fees were 4,537.15 euros. The largest amount transferred by Landcompany S.L. does not coincide with the net amount either. In addition, it is incomprehensible that no information was provided regarding this issue, about why fees were paid to another entity’s bank account, and why the previous Administrator did not indicate the identity of the real owner in the Minutes following 2008.
Mr Moleon took the floor and stated that the plot belonged to Banco de Santander. The Administrator replied that checking information is one of the tasks of Administrators, and in particular indicating correctly the names of owners, especially in the case of companies, because if claims have to be filed to collect debts, they must be filed against the owner.
At the date of the General Meeting, no confirmation had been received regarding the fees for El Soto that had been paid, no explanation had been given regarding why said company transferred fees to a different account, or why neither of the two amounts coincided with the receipts for fees issued. All these amounts were deposited in the El Vicario account, pending an answer to these questions. For this reason, members were informed that at the date of the General Meeting the debtor balance of said plot was 91,509.68 euros
Notifications of the outstanding debt should be sent, and if the company does not respond, appropriate legal actions should be taken.
The Administrator presented a summary of the annual accounts.
Income totalled 542,217.19 euros.
Expenditure totalled 453,064.65 euros.
The result of the financial period was a surplus of 89,152.54 euros which was passed to reserves, totalling 653,905.59 euros.
Mr Ivan Waring asked if the expenses caused by the fire had been included in total expenditure. He was told that they had been included, that the amount received from the insurance company and the expenses appeared in the summary which is attached to these Minutes, and that the previous President and the Administrator had all of the supporting documents for the amounts paid by the insurance company.
The Administrator informed owners about the evolution of the reserves. The labour law consultant in charge of the Community’s employment and fiscal matters had changed, and the current one was independent from the Administration office. This should always be the case, and external consultants should never have any employment or work relationship with the Administrator.
The Administrator stated that after reviewing different matters, she realised that since this was a Master Community of property owners that obtained a profit from renting the restaurant, in addition to other extra income, the Master Community should have filed a tax return for these capital gains. In accordance with the law, these capital gains must be passed on to co-owners by means of Form 184. This entailed a problem, because the Tax Agency must be informed of the names and identification documents of all the co-owners of El Soto. Solving this matter was turning out to be difficult. This year she tried to arrange appointments with the Tax Agency to explain that it was impossible to obtain the information from all owners of all the Communities, and to see what alternative solution they proposed.
The General Meeting should have been informed of this matter years ago to decide what measures to take. The problem had not been resolved, but at least now members were informed.
2,305.07 euros of penalties from previous financial periods had accrued against the reserve account, and new notifications had been received.
There were three options in respect to regularising this matter:
Following these explanations and after indicating all the matters that had to be analysed, once this was done the accounts would be submitted to a vote at the next general meeting.
The previous Administrator commissioned the law firm Martínez Echavarría to file a claim against this company after it acquired the plot from Promogedesa SA on 18/09/2018. In consequence, in accordance with the company’s legal liabilities, a claim was filed requesting payment of the debt for the years 2015-16-17-18. The amount claimed was 129,760.61 euros.
The previous Administrator did no hand over to the current Administrator any legal documentation in respect to the claims filed.
Mr. Juan Rimbau, the former President, mediated with the legal firm Martínez Echavarría to have their lawyer send those documents to the current Administration. The lawyer in charge of the claim was Ms Ángela Lomeña.
Joya Verde claimed the existence of a formal defect in the constitution of the Master Community -the Statutes were not registered and lack of an agreement between the Ojén Town Council and the Master Community - and added that it only owned the property for 8 months and that no debt had been claimed from the previous owner.
In order to present the document in the legal proceedings, the Martinez Echevaria lawfirm asked Mr Moleon for a copy of the agreement signed between the Ojen Town Hall and the Community of Property Owners El Soto de Marbella Club de Golf – Club Social, agreement which as explained in the report sent prior to the meeting is mentioned article 4 of the Statutes.
The previous Administrator never submitted this document to the lawyers or to the new Administrator. The date of the trial was set, and one month ago the Administrator succeeded to find the Agreement was finally found. A copy was given to the lawyer in charge of the legal proceedings.
The report sent by the Administrator included the letter sent by Mr Jose Arteaga to the Administration with the pertinent explanations, as follows:
My client has paid "with reservations" because the obligation to belong to the EUC and to CP EL SOTO has not been substantiated. In fact, the deed expressly states that making a payment does not imply said acceptance.
Notwithstanding the foregoing, my client is willing to solve the problems in the best possible manner, and if feasible, to voluntarily join both entities. In order to do this, it is essential to solve the issue of outstanding debts. We have withheld the maximum amounts that could be claimed from the previous owner, although the latter does not accept that we pay those amounts because it is not willing to pay for periods prior to its purchase.
in respect to CP El Soto, in court you are claiming from “Joya Verde” the amounts up to 31 December 2018. I could try to convince "Casa Ilimitado" to accept paying for 2019 and 2020, in which case my client would go ahead with its integration.
Mr Jose Arteaga stated that not allowing his client to vote at the EGM was a mistake, given that the latter had tried to explain the problem in an amicable manner. In addition to the issues raised at the meeting, they would now seriously reconsider whether they wanted to voluntarily belong to the Community of Property Owners El Soto Club de Golf- Club Social. He stated that they would review what happened in the trial against Joya Verde, and on that basis inform the Community of the decision they finally make.
The lawyer Marina Martínez reiterated that there were Statutes, and that membership should not be questioned because the deeds clearly indicated that owners were integrated in both El Soto and El Vicario.
Following a brief analysis of this matter, the majority of owners approved empowering the President to negotiate an agreement with the new owner’s lawyer, and the lawyer of Casa Illimitado, regarding which the General Meeting must be informed. The Community of Property Owners Marbella Hill View voted against the proposal.
Mr Paul Cossins, who had asked in February that the EGM be called because of lack of confidence in the President and the Administrator, took the floor and asked why dismissal was mentioned. The Administration thanked him for the intervention, but indicated that he was not entitled to speak since he had delegated his vote to Mr Emilio Moleon.
Mr Ivan Waring proposed Mr Shuj Datoo as candidate for the office of President.
In order to assess this nomination, Mr Bjorn Svensvik asked him who he proposed for the office of Vice President and Administrator. Mr Datoo replied that for the office of Vice President he had spoken to Mr Rens and Paul and that for the office of Administrator he would propose Mr Emilio Moleon.
Both the President Ms Lisbet and Mr Bjorn told him that it was not possible to consider electing someone who had not been capable of performing his functions properly and in a professional manner. The numerous errors committed in all these years were evident, and that the consequences were still unknown.
The President asked Mr Datoo for the reasons why he wanted Mr Moleon back as Administrator. Mr Datoo told her that he felt comfortable working with him, and that he was also the Administrator of his community. The President told him that as President he would have to legally represent the interests of all owners, and that he did not seem to understand the many errors that were made and the future consequences and legal measures that could arise from all the issues raised. However, Mr Datoo reiterated his decision.
Mr Tony Parrado took the floor and stated that he was very surprised by the results and the facts discussed at the meeting. It seemed that matters had not been handled properly, and in fact FRD ANDALUCIA 1 GmbH & Co. Kg had been negatively affected in the purchase of the plot by all the problems previously described, and in particular in respect to the economic information provided, indicating significant losses due to incorrect actions and lack of transparency and precise information. The President thanked him for his intervention, and agreed with his statements.
A vote was taken to elect the President:
Mr Shuj Datoo
Votes in favour: Communities El Soto de Marbella Fase II Fase II, Las Lomas del Soto I, El Mirador del Golf, El Bosque de la
Mairena.
Votes against: La Floresta de la Mairena, La Floresta Sur, Marbella Hill View.
Mr Shuj Datoo was elected President.
A vote was taken to elect the Vice President:
Mr Rens Zwanenburg
Votes in favour: Comunidades El Soto de Marbella Fase II Fase II, Las Lomas del Soto I, El Mirador del Golf, El Bosque de
la Mairena, La Floresta de la Mairena.
Votes against: Marbella Hill View.
Abstentions: La Floresta Sur.
Mr Rens Zwanenburg was elected Vice President by the majority of members.
Secretary Administrator
The President, Mr Juan Rimbau and Mr Bjorn Svensvik asked that Laura Varela Lewenberg continue as Administrator.
They thanked her for all her work and for reporting on many issues which are relevant and essential to ensure a better
control of Community affairs and ensure that all members of El Soto are fully informed. The Administrator thanked
them and stated that everything she had done was part of her work. She said that she hoped that the next
Administrator, whoever it was, would handle the administration work correctly, professionally, with transparency and
above all with information and documentary support for all the agreements adopted. As mentioned in the reports she
had sent, all the information should be correctly presented, with supporting documents and recorded in the Book of
Minutes, which was the legal document/ tool the Community had for the defence of its legal interests. Accounts,
budgets, fees and coefficients must always be recorded in the Book of Minutes.
A vote was taken to elect Mr Emilio Moleon as Administrator:
Votes in favour: Comunidades El Soto de Marbella Fase II Fase II, Las Lomas del Soto I, El Mirador del Golf, El Bosque de la Mairena.
Votes against: La Floresta de la Mairena, La Floresta Sur, Marbella Hill View.
A vote was taken to elect Ms Laura Varela as Administrator:
Votes in favour: Comunidades La Floresta de la Mairena, La Floresta Sur, Marbella Hill View.
Votes against: Comunidades El Soto de Marbella Fase II Fase II, Las Lomas del Soto I, El Mirador del Golf, El Bosque de la Mairena.
Mr Emilio Moleon from the firm Administraciones Rodríguez S.L. was elected Administrator by the majority of members.
Ms Lisbet Kristensen stated /reminded that according to the Statutes Art. 20 all the Presidents should send a copy of the Minutes to the owners of their communities.
There being no further business to discuss, members were thanked for attending the meeting, and it was adjourned at 3:10 pm on the day first above written, all of which I HEREBY CERTIFY as Secretary Administrator.
THE PRESIDENT THE SECRETARY-ADMINISTRATOR