23 Responses to Don’t Lose a Lawsuit on a Technicality

    • Here’s a two-part answer.

      First, there’s no legal reason to refuse to pay fees. The condo law requires all owners to contribute. The ideal time to object to (and change) the budget and fees is during the budget process. If your condo doesn’t carry out an open budgeting process before the assembly, then your opportunity is at the Annual General Assembly before the budget is approved. Once the budget and fees are approved, you can’t legally refuse to pay because you disagree. If you believe that the fees are improper, and you choose not to pay, you are breaking the law. This will probably result in the condo suing you, and you would have to mount a defense based on no proper basis for the fees. This could be lengthy and costly, and there’s no guarantee you will win.

      The second part is in response to “never get any financial data.” If this is true, this is a major problem, and you have every right to be upset (although not paying fees isn’t a good way to protest). Financial info starts with the budget and fees approved at the Annual Ordinary Assembly. Hopefully these were vetted with the community before the assembly, or discussed at length at the assembly. Every owner should have a copy. Once the budget and fees are approved, the condo law requires the board to meet once a month to receive a financial report from the Administrator. Since owners have a right to be at a board meeting, and since this report is an attachment to the board minutes which are required by law to be kept as part of the condo records, these reports should be accessible to you as an owner. Further, by law, the Administrator must issue a detailed quarterly report in the first 15 days of each quarter. By law, this report must be available to any owner who asks for it, and it also forms part of the condo records (which are accessible to any owner). If these things are not being done, then you may well have a legitimate complaint against your condo administration. Apart from legal action you might be able to pursue (consult a lawyer), you might consider gathering a few like-minded owners together and running for the next board.

  1. We still get no financial data at all. I’ve asked several times by email to the manager and the council, citing Article 1012. The manager ignors my polite requests and the council actually “yells” at me, how dare I “doubt his integrity”. They won’t even answer my question if they get any records. I was given the opportunity to look at the year’s bills and the bank balance sheets at the yearly meeting, and I feel certain this is all the council gets to see, but I certainly couldn’t make heads or tails out of those and see if it added up correctly. I’ve submitted a simple idea for listing the bills and showing a monthly balance. I’ve run for the council, but I lack enough support as people are afraid of change. Nothing will change as long as the dues are less than a law suit and the council is intimidated by the manager.

    • The situation you describe is a very unfortunate one!

      In my opinion, asking to see the financial records of a condo is the right of every owner. The condo records are the property of the condo, and, therefore, partly owned by you. The financial accounts are a legally required part of the condo records. Further, the state condo law (the article you cite) clearly requires the Administrator to produce a quarterly financial report, and to give it to any owner who asks for it. Apart from this quarterly report, the Council also must receive monthly reports from the Administrator, and the Council must verify the state of the accounts and their entry into the condo’s finanacial records.

      In my opinion, any Administrator or Council who refuses to show owners the condo’s financial records is not only in contravention of the condo law, but they’re clearly giving the appearance of having something to hide. It’s so very easy to provide this data to the owners, so why wouldn’t they?

      The situation you describe should concern all owners in your condo. There may be nothing wrong, but the behaviour you describe certainly sets off alarm bells. As to them claiming that you’re doubting their integrity, this is not even an issue. This seems to me to be a very defensive posture that sets off even more alarm bells.

      It’s the Council’s legal duty and responsibility to make sure the Administrator is doing the job correctly, complying with the condo’s requirements and the condo law, and also to verify the state of the condo’s accounts and the financial records. Of course, the owners have the same responsibility regarding the Council. Checks and balances.

      The Administrator and the Council need to realise that the condo’s money is really the owner’s money. They need to understand that their job is to spend this money wisely for necessary repairs and maintenance, services, and to build up the reserves. The Council and Administrator are legally required to carry out all the condo’s business under the observance of the owners. It’s hard to do this if they hide important information from the owners. Finanacial information is arguably the single most important.

      Do you think any member of such an administration would own stock from a company that refused to publish an annual report? Do you think they would happily hire a property manager to look after their unit while they’re away, and just pay them any amounts they ask without seeing any receipts or back up? I doubt it.

      So why wouldn’t they extend this same obvious right to the condo owners? Again, although nothing bad might be going on, the appearance is terrible. The way you describe the situation, looks like there’s something they don’t want people to know. There are enough stories about condos who’ve been taken to the cleaners by their administration, that they should understand perfectly why owners would want to see the finanacial records they’re legally entitled to see. As I’ve said, it’s also very easy to provide this information.

      In most cases where a condo has been defrauded, it’s because the Council or the owners allowed it to happen by not verifying and reviewing the finances.

      That said, correcting the problem might not be simple.

      1. As you said, you can run for Council. Unfortunately, you need support to do this. The problem of people not wanting to “rock the boat” is the main reason some condos are poorly run, and how some condos have been taken advantage of by unscrupulous people. It’s too bad that more owners don’t realise how potentially serious a situation like this is, and how it might affect the value of one of their biggest investments. If something’s going on, it almost always comes out eventually. Once it does, nobody wants to buy property in that condo, and it can take years to shake this bad reputation. Condo owners, like voters, usually wind up with the condo they deserve. If a majority of owners don’t care, the condo will not usually be run well (it may even have deep-seated problems). If a majority of owners are involved and vigilent, the condo can work very well indeed, and there’s much less chance of fraud or other issues.
      2. You could go to an abogado (lawyer) and get him to write a strongly worded letter to the Administrator and Council demanding access to the records, and proper financial reporting as required by law. This would not likely be very expensive, and maybe you can get a couple of other owners to go in on the cost with you.
      3. The final recourse, of course, is a lawsuit. Unfortunately, this can be both expensive and lengthy.

      I really do sympathise with the situation you described, and hope you can change things.

  2. Thank you Gary.

    I went to see a lawyer last year and he phoned the manager and was gruff in manner, very demanding in words at the same time very polite with words, “how are you”, etc.. It cost me 1,200 pesos and netted nothing.

    The law in PV seems to protect the managers, as there is no financial penalty for them, only us.

  3. A group of our owners have had similar problems. First, there is a voting group of seperate Corporate Owners that vote in lock step every year. Circumventing minority owner rights. One of those Corporate Owners is also the Administation of the condo complex. They also hold a majority vote in the General Assembly and quite bluntly inform us to sit down, shut up, because THEY get to decide whatever they want. The also are represented on the Advisory Council and out vote the Advisory Council to render them impotent. The do not even call the required advisory council meetings or submit reports to the council or owners.

    Litigation was filed by an owner which resulting in them mysteriously, selling their unit and a HUGE financial loss and the litigation evaporated. Stated they were threaten and intimidated.

    Time and Time again lawyers, Mexican Nationals, Realtors, etc. have advised us that litigation will get no where due to the corrupt legal system and that legal decisions ALWAYS favor those with power, connections, and money.

    They can simply ignore the by laws and Jalisco and National laws…

    Is there no other recourse?

  4. My condo is going to try Article 1032 against our developer, unpaid dues for 3 to 4 years. But I’ve been told it won’t work if the accused is a Mexican national or a Mexican corporation, our developer is a Mexican corporation. Do you know anything about this? The developer still owns 60%.

    • In theory the law applies equally to Mexicans, foreigners, and corporations – whoever the titleholder is as registered on the deed to the condo unit (make sure you know who this really is – NEVER assume!). There are no exceptions mentioned in the Code.

      In practice this could be different, but I believe that this is changing. I’ve heard from a notario that Jalisco courts have been recently favouring the condo over an owner in these matters.

      I think the key is to get a good lawyer who has some experience with this.

      Please report back here on your experience.

  5. We found out that our attorney hadn’t filed a lawsuit yet, it’s been a year! So, we asked, she says she skipped the lower courts of Puerto Vallarta and filed in Guadalajara at the higher courts. This sounds fishy to me, I’m wondering if she filed at all or if the courts threw the case out, as we have no evidence, the developer has all the records.

    Do you think it possible to bypass Puerto Vallarta courts, that’s where the crime happened?

    We are paying her for “incidentals” which comes to about 5,000 a month, she shows no itemized bills, just a handwritten bill that says “various legal expenses”. They’ve never said “filing fees”.

    And the manager says she has no idea what the developer owes, seems to me she would have had to put together a estimate.

    I think Roberto got good advice….stay away from lawyers.

    • Sounds fishy to me as well!

      While I don’t agree that you should stay away from lawyers (since they’re needed for a lawsuit), it is vital (and sometimes difficult) to make sure you have a good one! Sadly, there are people who claim to be lawyers who have not completed their degree, and even some who haven’t even studied law. Caveat emptor!

      First and foremost, make sure they have a licenciado en derecho (a law degree) usually indicated by “Lic.” in front of their name. If you want to make really sure, examine their degree on the wall of their office (NOTE: make sure it’s a law degree, there are also other types of Lic. – engineers and architects are examples).

      Make sure they have a cedula. This is a registration number that shows that they are authorised to practice law. This can be either federal or state. You can check to see if any number they give you is legit by checking it at these websites: for Jalisco State and federally. It’s possible that a lawyer was trained and registered in another state and moved to Jalisco, but they should be able to easily prove this.

      The first thing they should do when you engage their services is ask you for copies of certain documents that they will need to either file the suit or predict its success:

      a copy of the condo’s escritura constitutiva (the registered document that set up the condo regime);

      a copy of the current registered by-laws (might be contained in the previous document);

      a statement of account showing what the titleholder owes;

      a copy of the registered deed for the property showing who the registered titleholder is, and any attachments (such as a bank mortgage or trust);

      copies of registered minutes of annual ordinary assemblies showing the basis for, and approval of, fees (usually for the past two to three years); and

      a copy of the registered minutes of the last ordinary assembly where the person signing the legal documents on behalf of the condo (usually the Administrator) was appointed and granted powers for legal representation.

      If they don’t (or haven’t) asked for any of these, I don’t see how they could proceed with a suit.

      If they’ve entered a suit in a court, they will be able to give you a copy of the suit documents, stamped by the court, and showing the case number. If they can’t do this, it’s possible that they’ve done nothing. If they have done nothing for a year, then you’ve likely lost a year’s worth of delinquent fees!

      Lastly, do not pay unitemised bills! Do not pay hand-written bills! A legitimate lawyer will provide an itemised bill on letterhead with the name of the lawyer and his/her cedula number. Frankly, $5,000 a month for no results seems incredibly high!

  6. Well, thanks to you I just found out that the “lawyer” we hired is not registered, this site is wonderful for finding all licensed professionals: https://serviciossgg.jalisco.gob.mx/profesionesweb/wbfconsultaprofesionista.aspx
    So, she isn’t an attorney, and I am not on the “board” of my condo.
    Her invoices list her national public registry number instead of a cedula, which put a red flag up for me (once you helped me figure it all out), it looked like it was there to confuse gringos. It does say she is a lawyer, and her email says LIC before her name. She fooled us. For anyone else, a cedula is 7 numbers long, while a national public registry ID is long, 4 letters, 6 numbers and 7 more letters.

    Your post took some time and I really appreciate it, you have really got a valuable website, thank you so much.

  7. I found the web site to check her cedula: https://serviciossgg.jalisco.gob.mx/profesionesweb/wbfconsultaprofesionista.aspx No, she is not listed. I heard a rumor from a credible source that she had been disbared. She hadn’t asked for any of the above that you listed, so I feel she was always just taking advantage of us.

    I wonder if there is a way to find out that she was disbared? I tried to imagine that she was thinking she would be reinstated and so she was just waiting for that news to file for us, but I doubt the courts would reinstate someone who openly practices law, has a nice office, and has not respected their decision to disbar her.

    I am not on the council. I’ve ran but there’s a group of guys who have total control. I sent them all the link and my findings, no one bothered to acknowledge they got it.

    Caveat emptor for sure! But, what do I do….keep paying dues when I know we are being scammed?

    • Here it is May 5th, 2015, a year later, and we are out more money – paying the lawyer, and have not collected a peso. She presented a judgement from the courts which said a unit would be sold at auction, but it did not mention our condo name or unit number, it only had her name on it, anyway that was a couple months ago, just prior to the yearly assembly, she has not said a word about an auction since then.

  8. Our attorney bills us in excess of 8,300. to attend the yearly Ordinary Assembly, she also takes notes at the meeting and she writes up the minutes and submits them. The meeting lasts a little over an hour.

    8,300. seems quite high, does this amount seems usual to you?

    Our Ordinary assembly doesn’t follow the law, as we discuss whatever someone wants to and we also vote on things that were not posted on the agenda, even though the majority were not there.

    I think we don’t need a lawyer, we could do it ourselves ~ am I incorrect?

    • There is no requirement to have a lawyer to record the minutes of an assembly. You can appoint anyone competent to record the minutes.

      You must also appoint someone at the assembly (usually the last item of business before adjourning) to arrange to have these minutes protocolised and registered by a notario. Most notarios can also arrange to have the minutes translated, if they were recorded in English (the registered minutes must be in Spanish). Note: an abogado (lawyer) cannot protocolise and register minutes, this can only be done by a notario.

      It is very important that whomever chairs the assembly (normally not the person taking minutes!), makes sure that the assembly strictly follows the published Order of the Day. Any other issues that are voted on are not legal unless you have 100% representation of the condo rights at the assembly. Even then, if these are items that require an Extraordinary Assembly, then they cannot be voted on at an Ordinary Assembly.

      It is very unusual for a notario to include any items that were not on the Order of the Day in the protocolised and registered minutes. A good notario will delete these items from the protocolisation, and, from a legal perspective, it would be as if they never happened.

  9. Well, I’ve found out that our developer had a nice condo regime in place and it’s still filed, however she filed us as a civil association (A.C.) back in 2009.
    Reading your book it says that we cannot sue for delinquent dues if in a A.C..
    Someone hopefully mentioned that maybe our administration is an AC, while the HOA could be a Condo Regime……. could that be true?

    I tried to tell everyone the pitfalls of being a A.C., I thought they all agreed, but I looked at the minutes from the assembly meetings and see it was not mentioned. and I don’t remember it being mentioned at the meeting. Can we just vote it gone? I don’t trust that our lawyer will get it absolved. And the manager must be delighted with the employee status, I see that she has started deducting taxes from her paycheck, she sent us this openly, in a spread sheet. Which is all we get as statements.

    Our lawyer is also charging us for thousands of dollars in “edictos”, which I understand are proclamations, have you ever heard of this? The manager says the lawyer needs to put them in the newspaper in Guadalajara. Both the lawyer and the manger refuse to scan one and send it to us – to show us what it is. They cost a couple thousand a piece.

    The lawyer had said she wouldn’t charge us until she won the case, that was last year…..we’re up to 200,000. in charges. She also said we’d be rolling in money in a couple weeks, back in Feb.

    My condo could write a book on what could happen in Mexico.

  10. Two months ago our manager sent us a copy of a court document which says someone, it does not specify any names, won the rights to auction a property at some condo, once again the document does not specify any names, but we were told it is us…our lawyer’s name is mentioned (but she has no cedula). So, we got all excited and cleaned up the apartment she said was the one…again, the document did not specify the unit. This document looked like the real deal, the case number was correct, line through the page, stamped with the seal…..but we have not heard another peep from the manager or the lawyer about this “sale”.
    I have little faith, it’s coincidental that this document came out just prior to the Ordinary Assembly. The manager and lawyer kept their jobs because of this page from the courts..
    Now, my worry is that our lawyer has no liability as she is not licensed. Her husband is licensed, so she must get info from him. We keep paying outrageous bills from her, even though she said she would not charge us anything until she gets paid..

    BTW, we did not get our Minutes from the meeting until 2 weeks after they were legally registered….6 weeks after the notary sent them in, even though a few of us repeatedly asked to see them (while the 30 day period to protest was in effect). Now, I’ve translated them word for word as she didn’t send them in a format that anyone could cut and paste them, guess what, it’s plain scary what she wrote in the Minutes, a legal contract for herself – she now has “ownership rights”, unlimited power. She wrote that she was revoked as “Mary Ann”. and we hired her as “B. Mary”. The notary actually interred a paragraph saying we should set limits.
    There is also a clause where we agree to pay the lawyer from the day the pursuit started, even if we never get paid. No amount is specified. This is in the Minutes, and it is not truth.

    We’ve been so trusting, we didn’t want to insult any Mexicans, so we have no contract…..I’ve tried to warn the other owners, but they keep telling me I am insulting the manger and lawyer’s integrity. Heck the President of the HOA sent out an email asking the others to join her in suing me for slander against the manager, the lawyer said what I’ve said doesn’t rise to the standard of slander.

    I don’t know what to do. Have any advise?

    • It’s hard to imagine a valid court document that doesn’t name the parties. This should be an impossible scenario. Not only is this a fundamental requirement for filing a law suit, along with pages of other things, it would seem to be rather necessary for the court to know who the parties are so that both arguments can be considered and a judgement can be rendered.

      BTW, as a condo, you should be getting facturas for any payments for legal services (and all other services). These must now (under the new tax laws – January 2014) be issued electronically, must be in a standardised format, and bear an official seal from SAT as well as the lawyer’s RFC number. Your accountant (and you must have a certified Mexican accountant to file with SAT) will need these facturas to do monthly filings, plus the year-end filing with Hacienda.

      You should also always insist that all invoices from a lawyer include the lawyer’s cedulla. If the lawyer does not provide their cedulla and does not issue electronic facturas, I would personally be very concerned.

      • The manager says these facturas are in the office,” come have a look”. She refuses to email copies. None of us speak Spanish. No one will insult her and go look. I am scared away, as I keep asking for answers, get ignored.
        I’ve asked for the cedulla several times and even accused her of not having a license, no reply, she signs with a CURP. Does this mean she isn’t liable for anything she does legally?
        We have no contract with her whatsoever.

        The manager just sent our Minutes, they are in photo format, so they cannot be scanned but I have copied them, very small print that cannot be enlarged. They are 15 pages long, they include Article 9, 10, 2554 & 2207 at the end under Inserto de Poderes. It will be very hard to copy them word for word so I can translate them.

        I am thinking I better go see a lawyer, but it is hard as I get no support, people think I am awful for having doubt.

  11. You said, “Your accountant (and you must have a certified Mexican accountant to file with SAT) will need these facturas to do monthly filings, plus the year-end filing with Hacienda.”

    Is this filing for all facturas, from all services?

    If it is, why do you think Hacienda started this? I am wondering if it is to cross check companies, so that they can compare what a company reports to Hacienda – with what the condos (and other companies?) report to Hacienda. I am thinking if we condo owners could get a copy of the monthly and yearly report then we could cross check what our managers say they are paying out against what they are billing us. Do you know if this is possible, other than asking the manager…?

    I see no evidence that my condo is fulfilling this new requirement…..but I can’t help but think they sure don’t want me to know. Is there a punishment for non compliance?

    • Yes, you need to get facturas (under the new law, they must be electronic facturas) for all goods and services purchased by the condo. This includes, by the way, the services of a paid Administrator. There may be a minimum threshold for issuing these (for example, not needed for amounts below $1,500 pesos). I’m not sure about this, but an accountant will know.

      The accountant must list all of the goods and services purchased each month in his filing.

      Only people legitimately registered with SAT (and paying income tax on their revenues) can issue facturas. I’m sure the reason for this (and the monthly reporting) is that Hacienda is trying to reduce or eliminate the underground economy.

      I don’t think there’s any way of checking on the filings of your condo with Hacienda, however, under federal tax laws, your Administrator must include all of this in a monthly report to all owners in the condo (Article 25.IV of the Federal Income Tax Regulations).

      Another source of this info would be your condo’s accountant.

      Yes, there are stiff penalties for non-compliance. This is the federal income tax law, and is not to be taken lightly. Rather than civil recourse (i.e.: a lawsuit by affected parties), the penalties for violation of federal tax law are criminal, with possible fines and jail terms on conviction.

      • Thanks so much Gary,

        I have both of your books, but cannot find Article 25.IV, is it new?
        As your new book doesn’t come out for months, how do I get a copy of 25.IV?

        Our accountant doesn’t speak English and both her and the manager are over 70 y.o., no one wants to doubt their ability.

        I sure hope jail has good food and nice beds…

        • The new tax laws are translated in the “Jalisco Condo Law in English – Second Edition”. This is one of six new sections added since the first edition.

          Copies of this book are now available in México… go to the “Books” section of the updated web site at JaliscoCondos.org.

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