I think I might have chosen a controversial topic for my first blog post, but I’ve received questions about this topic from multiple condos both on the coast and in the Lake Chapala area, and I think it’s an important one!
On page 37 of the “Jalisco Condo Manual” I wrote, “It isn’t legal to prevent an owner from voting at an assembly for any reason, including if they’re late in paying fees or assessments.”
This post has been updated since it was first published with an opinion from a notario (see “A conclusion…” at the end).
So, how did I come up with this?
I based this partly on a legal opinion that our condo got when we were planning our first assembly to change the administration from the developer to the owners several years ago. The developer had forbidden delinquent owners from being at and voting at the assemblies, and the transition team wanted to know if this was legal. The legal opinion they got said that it was not. Unfortunately, this opinion wasn’t in writing.
As well as this legal opinion, the opinion in my book was based on some reasoning:
The condo law doesn’t set up categories of owners – it just defines owners (or, more correctly, condóminos or title holders). These owners are then given rights and obligations by the condo law.
This can be interpreted as meaning that an owner is an owner, whether blue, four-feet tall, or delinquent.
There’s nothing in the Code to suggest that a condo owner loses their inherent rights just because they’re behind on their fees. I believe that the right to be at a condo assembly, and to vote is a real right that’s attached to the title of each condo unit.
- The section of the Code on owners’ rights and responsibilities does not qualify that these rights only apply when an owner is current.
- The section on assemblies simply refers to owners attending and voting, and does not in any way qualify this.
- The section that explicitly deals with the remedy for non-payment of fees does not mention that delinquent owners can be stopped from voting at an assembly (if this were the intent of the legislation, I’d expect something to be found here).
Summary: since the Code gives explicit rights to owners (and I believe that property owners also have more rights under other sections of the Code), and since it doesn’t appear to lessen or change these rights when the owner becomes delinquent in their fees, I don’t believe that a lesser authority (such as the by-laws or a Council/Board) can override these fundamental rights.
Another compelling argument was brought up by a commenter below: if your delinquent owners together have 26% or more of the condo rights, and you bar them from voting at assemblies, then you can never hold an extraordinary assembly (because you can never get the minimum 75% of the total condo rights needed to pass a motion).
I’ve been told by various condos that they have legal opinions from local abogados telling them that they can and that they cannot prevent delinquent owners from voting at an assembly. Yes, you read that correctly… there are conflicting, polar opposite opinions out there.
The problem is that none of these opinions are in writing, nor are there any citations. By citations, I mean that the lawyer says you can do this because of Article xxx of the Code, or the Ley de Blahblahblah, Article yyy. Without this, it’s impossible to know if they’re just off-the-cuff opinions (that might not be correct), or a fact of law.
If I were on a Council/Board of a condo that was planning to enact a policy to take away a fundamental right of an owner, I’d want to have a very clear legal position to back this action up.
Without this legal backup, I’d strongly recommend erring on the side of caution. I wouldn’t try to stop an owner voting at an assembly because they’re delinquent in their fees, unless I had a detailed (includes citations) written legal opinion from a Mexican legal professional supporting this action.
A challenge to the community
This is a controversial and important topic. I, for one, would like a definitive answer. If I see something concrete, I’m more than ready to change my position on this.
So… if any of you out there have a definitive legal opinion on this, please share it in the comment section below this post! If you’ve prevented morosos from voting, and have run afoul of a lawsuit or other legal problem, please also share your story! If you prefer your comments or stories to be anonymous and unattributed, please use the “Email Us” tab on the left of this page to send us a private email.
With the breadth of experience in the condo community in Jalisco, maybe we can all get a conclusive answer on this. Community interaction is one of the reasons I started this blog…
A conclusion… [Update]
I have received an email from a Jalisco notario whom I respect very much. He says that a formal legal opinion on this issue should not be needed because voting at an assembly is a basic right of condo owners. He adds that if a condo has an issue with unpaid fees, it must be dealt with in a law suit, and can never be used as an excuse to deny voting rights.
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