JaliscoCondosOrg Blog

Author: GNM

  • Cutting-Off Water to a Delinquent Owner

    Any condo that has delinquent owners is frustrated by this state of affairs, and is always looking for any pressure they can apply to get these people to pay.

    Rather than a municipal water supply, some condos have their own water supply (often in the form of a well).

    They don’t actually own this water supply (it isn’t common property), since water is a national resource that always belongs to the Republic. What they should have is a concession from the Comisión Nacional del Agua – CONAGUA (National Water Commission). This is a federal body, set up to administer the nation’s water, along with a decentralised management system for it. This concession gives them a temporary right to use and distribute this water to users in their condo.

    Other condos might have a common property aljibe (water tank) that’s filled by the municipal water utility, and then water is pumped from this aljibe through the condo by a common property water pumping and distribution system.

    In either case, it’s tempting to want to shut off water to a delinquent owner to give them an incentive to pay.

    Water is highly regulated in Mexico

    The laws governing water use in the state of Jalisco are as follows (from highest authority to lowest):

    1. the Mexican Constitution and International Treaties on Human Rights (NEW – more on this later)
    2. the Ley de Aguas Nacional (National Water Law)
    3. the State of Jalisco Constitution
    4. the Ley Del Agua Para el Estado de Jalisco y Sus Municipios (Water Law for the State of Jalisco and its Municipalities)
    5. the Reglamento (rules of procedure) for the above law
    6. the Reglas de Operación de la Comisión Estatal del Agua de Jalisco – CEA (Rules of Operation of the State Water Commission of Jalisco – CEA)

    There are also several Normas Oficiales (official standards) for such things as the quality of water delivered for human use and consumption.

    The CEA is an organization made up of the representatives of local water boards or local organizations of water users (such as fraccs and condos), CONAGUA, and other competent authorities, and acts as the coordinating body in the respective watersheds in terms of the law.

    You cannot cut-off water

    Deriving from the National Water Law, and being amplified in the lower laws, is the right to water for drinking and sanitation. This is considered a basic need for life, and cannot be cut off.

    That said, you do have the right to enforce sanctions if you have a contract for water delivery with your owners, and this contract spells out the violations and the corresponding penalties. This contract could include a clause to limit water use in the case of non-payment. NOTE: the terms of your contract with your users cannot violate or contradict the terms of your water concession.

    Turning it down to a trickle

    A common practice has been to decrease the water flow to the unit to a minimal amount. Then you could argue that you hadn’t cut-off the water, but the owner might be inconvenienced enough to pay up.

    If your condo has its own water supply, and you have a water concession from CONAGUA, you need to carefully read the Terms and Conditions of your concession. It might have limitations on what penalties you can impose on your water users, including reducing or limiting their water. If you decrease water flow to a user, and your concession doesn’t let you do this, you could lose your concession.

    If your condo collects and redistributes municipal water, you might be in a better position. The aljibe, the pumps, and the distribution piping are common property and are jointly owned by all owners (including the delinquent owner). As such, you can’t deny an owner access to property (in this case equipment) that they own (jointly or fully). However, you can argue that in this situation the water itself (not the distribution system) is a service for which the condo pays from revenue received in the form of fees. Non-payment of these fees might be cause to reduce the non-paying owner’s water supply.

    Two important and recent changes to the Constitution

    Two recent changes to the Mexican Constitution might make the practice of reducing water risky.

    1.  In June of 2011 Articles 1 and 103 of the Constitution were changed to give equal weight to human rights contained in international human rights treaties to which Mexico is a party, and to make these enforceable by the Federal courts.

    The General Assembly of the United Nations at its 108th plenary meeting on June 28, 2010, adopted resolution A/RES/64/292 which says, in part:

    “1. Recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights;“

    As of June 2011, this is now part of the Mexican Constitution and Federal Law.

    2.  To further shore this up, in February 2012 a new paragraph was added to Article 4 of the Constitution, as follows:

    “Every person has the right to the access, distribution, and sanitation of water for personal and domestic consumption in a form that is sufficient, healthy, acceptable, and accessible. The State will guarantee this right and the law will define the basis, the assistance, and the means for access and fair and sustainable use of the water resources, establishing the participation of the Federation, federated entities, and municipalities, as well as the participation of the citizens for the attainment of these goals.“

    It’ll take a few more years before this filters down into procedures in the other Federal and State laws, but it signals a significant change. Mexico is clearly getting in sync with a global movement towards making access to water a basic and fundamental human right. And, even though there might not be systems in place for fully carrying this out, it’s now a Constitutional right in Mexico.

    One of the more important words in this new article (that may have been intended to plug the trickle loop-hole) is “sufficient.” What exactly does this mean? In the context of the right to water, the internationally accepted meaning is this:

    “The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. According to the World Health Organization (WHO), between 50 and 100 litres of water per person per day are needed to ensure that most basic needs are met and few health concerns arise.“

    Not exactly a trickle!

    These new changes could make it easy for a delinquent owner to get an injunction against the condo for seriously reducing their water. The injunction process is different from a lawsuit, and is much faster.

    Anyway… something to think about.

  • Your Condo’s Fiscal Year

    In my book, the “Jalisco Condo Manual,” I say that a condo’s fiscal year should run from April 1 to March 31.

    I get a lot of questions like, “Where does it say this in the condo law?”

    It’s Implicit Rather Than Explicit

    Those of you who’ve asked this are right! There’s nothing in the Civil Code that directly says this. However, in my opinion, this is an implicit requirement, rather than an explicit one.

    Here’s my logic:

    Article 1012.VII of the Civil Code says that the Administrator must give a financial report in the first fifteen days of April, July, October, and January of each year. These are the quarterly reports. Since the financial reporting is clearly expected to be done in calendar quarters, I believe that the intent is that the fiscal year starts at the beginning of one of these quarters. Therefore, your fiscal year should start on the first of April, July, October, or January.

    So… why not January 1st?

    Article 1020 of the code says that the annual assembly is required to be held in the first three months of the calendar year, and the purpose of this assembly (among others) is to approve the budget for the next fiscal year.

    Assume you want your fiscal year to start on January 1, and you hold your assembly in Mid-March.

    Your last approved budget would have expired on December 31. Since your condo can’t operate without an approved budget, I can’t see how you could legally function in January, February, and March until the assembly. If you do this, you would have been operating with no approved budget for two-and-a-half months, and you would also be approving your budget and fees for this time-period after-the-fact.

    What if the after-the-fact budget didn’t pass, or had to be changed for any reason?

    How do you legally set fees for this first quarter without the approval of an assembly? How can you collect from owners who don’t pay them?

    This logic applies no matter in which of these three months you hold your assembly (January, February, or March), since any of these would be after the start of your fiscal year.

    OK… so why not July 1st or October 1st?

    I don’t believe that starting your fiscal year in July or October will have any legal issues, but there are practical considerations.

    Preparing a new budget as close to the end of a fiscal year will always give you more accurate results than preparing one only part way through.

    For example, suppose your fiscal year started on October 1st, and you were voting on your budget for the next year at an annual assembly in February. You would only have about four months of actual expense data on which to base your next budget.

    For these reasons, I believe that the fiscal year should start on April 1. That said, the best person to ask for advice on this is an accountant.

    What about taxes?

    I’ve heard conflicting reports that Hacienda insists on a tax year that’s the same as the calendar year (or not).

    If this is the case, then it might be possible to have a tax year (for tax accounting purposes) that differs from your fiscal year (for budget and fee purposes). This is common in the US and Canada, but I’m not sure if or how this works in México.

    If you know for sure, please help…

    If you do have a definitive and substantiated answer on the fiscal year or the tax year, please share it with the rest of us!

  • How Condo Boards Can Deal With Difficult People

    Human nature is the problem

    A condominium is a unique way of owning property because it forces you to work with other owners to make decisions affecting the common property. Human nature being what it is, this inevitably means conflict.

    Potential for disagreement exists as soon as you have more than one person involved in making decisions. The more people involved, the greater the potential for conflict. Throw an administrative structure into the mix, and the situation worsens because some of those in the administration will perceive that they have “power,” and will want to exercise it. At the same time, some of those not in the administration will resent those who are, and will blame them for their problems.

    These are fundamental truths about human beings, they exist in every condo everywhere in the world.

    I believe this is such a fundamental issue that I gave it an entire chapter in my book, the “Jalisco Condo Manual” (Chapter 58 – Dealing With People).

    Difficult people?

    People perceive other people as “difficult” when they strongly oppose their views. The more aggressive the other person is about this opposition, the greater the perception of them being “difficult.” This creates conflict, and both sides tend to “dig in” and to resent the other.

    Just as it takes two to tango, it takes two to have a conflict. The goal of this post is to help members of a condo Board lower the potential for conflict by avoiding their part in it.

    How to deal with communications from owners

    In general, a condo Board is made up of owners who are volunteering their time to benefit their community. They’re trying their best to carry out a difficult job. No one likes to be challenged or criticised. When an owner confronts the Board with a problem, the natural reaction is to resent this.

    However, the Board owes a duty of care to the condo. Part of this duty is to examine and answer owner issues. This can be summed up as follows:

    If an owner sends a question, suggestion, or complaint to the Board, then the Board must consider it and respond.

    In an ideal world, this would work smoothly.

    Unfortunately, owners are people, and they have many different personalities. As a result, there are many approaches they might take to communicating their issue. Some will be better at this than others. It’s often the way in which the issue is brought to the Board that causes the conflict.

    Tips on how a Board can deal with different types of communications:

    If an issue is expressed clearly and reasonably:

    Acknowledge receipt of the communication immediately.

    Discuss it, but don’t treat this with a knee-jerk reaction. Give the owner’s views serious consideration. They’re important to that owner, and they took the time to address them. Does the owner have a valid point? If they disagree with a board policy or practice, consider whether they may be right.

    Always be prepared to change if there’s a better way or you’re proved wrong. There ‘s no shame in this. Forget about pride and “saving face.”

    Respond to the owner in a reasonable time-frame whether positive or negative. If, after due consideration, the Board isn’t going to act on the matter, or you don’t accept the owner’s views, then always say this, and always explain why (in as much detail as the original communication demands). Always be professional and polite.

    If an issue appears silly or frivolous:

    Remember that this isn’t the case for the person who sent it. To them it’s important. Respond in a way that let’s them down easily, explains why you’re not acting on their matter, and always do this with respect and in a non-insulting tone.

    If an issue isn’t expressed well:

    Don’t judge it harshly. English might not be the person’s first language, or they might not have good writing skills. Look past this at the content, and address that. If you need more information, ask questions.

    If an issue is expressed in a profane, rude, or confrontational way:

    A volunteer Board deserves to be treated with respect, and abuse or personal attacks are not acceptable. However, don’t ignore it, but do not respond in the same way.

    Send a simple response saying something like, “We value input from owners. However, the tone of your email is antagonistic. The Board doesn’t consider or respond to such communications. Please re-state your issue in a polite and non-confrontational way, and the Board will discuss it. Thank you.”

    Always phrase this response in a business-like and polite way. Resist the temptation, and do not respond to anything in the owner’s communication.

    Some people are just angry at the world, they blow up disproportionately at the smallest things, and their communications can reflect this. Don’t drop to the level of these people. They need to be trained. Once they learn that this attitude will be ignored, they’ll be forced to change their tactics to get their issue heard.

    If any of these people present their issue at a board meeting in the same tone (angry and abusive), the Chair must immediately shut them down, and tell them that the Board will not consider their issue until they can present it in a calm and polite way.

    The way in which a Board deals with these issues helps set the tone in the community. If the Board appears to be arrogant, rude, or confrontational, then that’s what they’ll get back. It’s up to board members to take the high road, and set an example for professional, polite, and respectful dealings.

    Managing owner’s perception of the Board

    Sometimes, from an owner’s perspective, the Board appears arrogant, controlling, and unresponsive to input. The key to changing this perception is to always be open, transparent, and communicative.

    Always invite owners to board meetings. Never meet in private. Send out board minutes to everyone shortly after the meeting (or post them on your condo web site).

    Always involve the community in major decisions such as budgets or by-law changes.

    Always deal with owners and each other in a calm, business-like, and polite way.

    Always respond to non-abusive owner communications.

    Always let the owners know what’s going on. For example, if something is broken on the common property, let the owners know that you’re working on it. As well as keeping them “in the loop,” this avoids multiple complaints or reports about the same thing.

    Remove personalities from the equation

    Adopt and communicate a policy to not accept verbal communications from owners to individual board members. It’s up to the board members to enforce this by politely asking an owner who tries this to, “please send something to the Board,” and politely refuse to discuss it.

    Explain that the Board makes decisions as a body, and that all communications must be in writing to the Board as a whole. Owners can send an email to the Board, submit an issue through the condo web site, or submit a written statement at a board meeting.

    Set up an email address specifically for the Board (such as VistaDelBasureroBoard@frogmail.com). Have owners send their issues to this address, and respond to them from this address. Emails from the Board should be signed from “The Board.” The response should be approved by all board members.

    Avoid owner communications to and from individual board members. In particular, avoid multiple responses from different Board members on one issue. Agree to a unified response, and send that one response from the entire Board.

    This policy removes face-to-face confrontations, that can escalate out of control. It also removes the “shoot the messenger” syndrome, where an owner will blame an individual for the actions of the entire Board just because that’s the person they got the email from. It trains owners to treat the Board as a body, rather than as individuals. It also goes a long way to removing the potential for personal attacks.

    Difficult people on the Board

    The entire Board will seldom agree on everything. As a result, some board members might consider some of their fellows to be “difficult people.”

    The Board is a democratic committee, and the majority rules. If you’re on the losing side of an issue, you must accept it gracefully.

    As a board member, you owe it to your community and your fellow board members to behave in a calm, business-like, non-confrontational way at board meetings.

    If you feel anger welling up, hold your breath, count to 10, and don’t react.

    If another board member loses it, and confronts you personally, don’t respond in kind. As a last resort, tell them that you don’t respond to personal attacks or anger, and then ignore them until they change their tone. Refuse to be drawn in.

    I know this is much easier to say than to do, but, if you can learn this skill, it will go far in making your life on the Board more enjoyable and far less stressful.

    Since there’s a certain percentage of people who’ll always react in exaggerated anger over even small matters, it’s also possible that there’s one or more of them on the Board.

    If this is the case, remember that the Board is there to serve the community, and these people must keep themselves in check when dealing with owners and fellow board members.

    If you have this problem yourself, and it’s causing friction on the Board and with owners, then maybe being a board member is not the right choice for you.

  • What’s Legal and What’s Not?

    Most of the questions I get from book owners start out, “Is it legal to…?”. Sometimes there’s a clear answer, because the condo law covers the issue explicitly. However, sometimes this isn’t the case. What then?

    Basic legal principle

    There’s a basic concept in civil law (the type of legal system used in Mexico) that at first glance seems very simple. It says that anything that isn’t specifically forbidden is allowed.

    I said, “…at first glance.”

    To be accurate, when you think about this, mentally expand it to, “anything that isn’t specifically forbidden by any governing law in Mexico is allowed” Therefore, the problem for condos is that this principal doesn’t just apply to the condo law all by itself.

    The condo law in Jalisco is, in reality, a small section of the Jalisco Civil Code. When considering whether something is legal or not, you need to consider: municipal laws, the rest of the Civil Code, state laws, the Federal Civil Code, federal laws, and the Mexican Constitution.

    Be very sceptical…

    Be sceptical of people who say, “There’s nothing in the law that forbids this, so we can do it!” If they’re referring only to the condo law, they might not be correct.

    If an issue clearly applies only to a condominium, then you’re likely safe in relying on the condo law, and nothing else. Such things as:

    • the duties and responsibilities of the Administrator and Council/Board;
    • obligations of a condo owner;
    • the method of calling an assembly; or
    • the quorum and voting needed at an assembly.

    Other things are not so cut and dried.

    For example, issues affecting common property are regulated in two places in the Civil Code. As they relate specifically to the peculiarities of a condo regime, they’re in the condo law. However, the rules in the condo law are in addition to basic regulations about all common property (condo or otherwise) that are set out elsewhere in the Civil Code (this section is in the “Jalisco Condo Law in English”). If your particular issue with common property isn’t covered by the condo law, then you must also check the general common property regulations before deciding you can go ahead and do something.

    Some things might appear to apply only to a condo. When I looked at the issue of proxies at an assembly in an earlier post, this was an issue that the condo portion of the Civil Code was silent on. However, other parts of the Code were not.

    Beware of reducing rights

    Some actions you might be thinking about taking could impact a condo owner’s rights. Rights are taken seriously in Mexico. While there might be nothing in the condo law, these rights could be protected because they’re fundamental rights, real rights attached to the ownership of property, or rights given by another law.

    Before doing anything that lessens or removes something that looks like it might be a right, make sure you have the law on your side. I strongly recommend that you get a written and cited legal opinion. If you get only a verbal opinion, it might not be correct, and the condo, not the lawyer, could be liable.

    You also need legal citations that you can use in a court case if the person objects, and this becomes a legal issue. It’s also a good idea to quote these citations at the time you lessen or eliminate something that could appear to be an owners’ right (for example, in a by-law clause or in a letter to the owner). This gives you solid, defensible backup.

    Don’t forget to check your by-laws

    There could be an issue that isn’t covered by the condo law, or any other law, but might be regulated closer to home: in your by-laws!

    By the way, while we’re on this topic, if one of your by-law articles contradicts the condo law or some other law, then it has no validity. So what exactly does this mean? It means that it can’t be enforced.

    If you have an illegal by-law article, there’s nothing you can do to force any owner to follow it. Owners might not know it’s illegal, and could happily comply. Sometimes for years. But, if someone does not, you can’t impose fines, sanctions, or penalties (OK… you can try, but you can’t legally collect them if they don’t pay), you can’t successfully carry out a legal action, and you can’t force the sale of their house at public auction. You’re welcome to try any of these, but you won’t win in court.

    Never assume knowledge

    My final piece of advice is to not rely on your knowledge of condo laws and practices from other jurisdictions, or legal practices from the U.S. or Canada.

    Each state in Mexico has its own condo law. While there are fundamental concepts that are the same, there can be significant differences. The same is true in the U.S. and Canada. Each U.S. state, and each Canadian province, has its own condo legislation, and these do vary.

    It’s also important for foreigners to realise that Mexico, and the U.S. or Canada have significantly different legal systems. The U.S. and Canada use a common law system, while Mexico uses a civil law system. Many legal concepts and practices fundamental to the legal systems North-of-the-Border just don’t apply in Mexico.

    Common law legal systems rely on a history of earlier judicial decisions (jurisprudence) as the main source of law. Under common law, the judicial branch has great discretion to interpret and create law over time.

    In contrast, a civil law, or code-based legal system, relies mainly on the written law. Changes to the law come about through the actions of the legislative branch. Judges don’t usually have the discretion to interpret the law, or to take positions that differ from the law as it’s written.

  • Conferencing in Meetings and Assemblies

    In the past week or so I’ve received similar questions from different book owners. They were interested in knowing whether it’s proper for a board member to take part in a condo board meeting by videoconference technology (such as Skype).

    If you have board members who are snow birds, or if you have board members who are on vacation (and are dedicated), electronic participation at board and committee meetings can be a useful tool to hold meetings if those physically present wouldn’t form a quorum. Apart from quorum, it also lets these absentees express their views on topics that are important to them. It’s a great enhancement to democracy.

    What does the law say about board meetings?

    The portion of the state civil code that deals with the condo law is silent on how board and committee meetings are to be carried out. There’s nothing I can find in the rest of the civil code to prevent electronic participation, so unless someone can come up some other law that forbids this, I see no reason why you can’t (even more reasons why I think you can a bit later).

    Because of this silence of the laws, it’s probably wise to put any important procedures such as this into your by-laws. You’ll want to cover such things as quorum, rules of order, and electronic participation.

    What about Robert’s Rules?

    Since the civil code appears to be silent, what about the main North American authority on meetings: Robert’s Rules of Order.

    The latest edition of Robert’s Rules accepts the 21st century, and allows modern technology in meetings. Their main requirement is that whatever technology is used, must let everyone taking part hear each other at the same time and, in the case of a videoconference, see each other as well. They say that simultaneous communication amongst all participants is “central to the deliberative character of a meeting.” It recognizes both videoconferencing and teleconferencing technologies, but recommends their use be included in the organization’s by-laws.

    However, they warn that although e-mail or fax are fine for issuing calls for meetings, or for voting by ballot, these technologies, unlike conferencing, aren’t suitable for carrying out the business of a meeting because of the lack of real-time interaction amongst all participants.

    As far as electronic participation is concerned, your by-laws should say, at a minimum:

    • members can attend in person, by teleconference, by video conference, or any other method that allows simultaneous communication amongst all participants;
    • electronic participation counts towards quorum; and
    • electronic participants can vote.

    What’s the general acceptance in Mexico of this technology?

    In 2005, UNCITRAL (United Nations Commission on International Trade Law) has been encouraging countries to incorporate electronic signatures and electronic mediums into their laws. Since 2006 or so, Mexico has been embracing a world trend in letting conference technology be used in meetings. It’s important to note that any international agreements signed by Mexico have the same weight as Federal Law.

    Apart from major corporations who routinely use this technology for meetings, I’ve looked at the laws governing two federal departments (chosen at random). Both the Consejo Nacional de Ciencia y Tecnologia (National Council of Science and Technology) and the Consejo Nacional de Evaluacion de la Politica de Desarrollo Social (National Council for Evaluation of Social Development Policy) allow videoconferencing technology. Here’s an excerpt from the statutes regulating the last of these two councils (Article 22.- Attendance):

    In special cases, members of the Executive Board will be able to attend the ordinary and extraordinary sessions of the Executive Board in a virtual way, through videoconference or other similar medium that lets them analyse, suggest, and discuss in real time the business of the session and the choices for the solution of problems.

    Further, there are significant changes being made to the legal system by Federal legislation to let videoconferencing technology be used in courts. This is particularly true of those courts that deal with business and commercial disputes. For example, the Tribunal Federal de Justicia Fiscal y Administrativa (Federal Court of Fiscal and Administrative Justice) has allowed videoconference testimony since at least 2009.

    The 2012 version of the Código De Comercio (the federal Code of Commercial Law) lets videoconference testimony be used in judicial hearings for matters falling under this code’s jurisdiction.

    If it’s acceptable to the federal government, I don’t see why your condo can’t do it.

    What about condo assemblies?

    Since use of this technology appears to be possible for board and committee meetings, what about a condo assembly?

    Again, the condo law is silent. In Jalisco. Interestingly, the condo law in the state of Quintana Roo specifically lets participation in a condo assembly take place by videoconference. Their condo law says that for voting in an assembly, electronic voting and communications can be used for owners who aren’t present.

    For a large condo with a high number of absentees, the technical issues could be overwhelming, but there doesn’t appear to be a legal impediment. In such a case, this might be impractical at the present time, but a few years in the future…

    Personally, I’d rather attend a meeting or an assembly by conferencing than by proxy. Why would you allow one and not the other? What’s the difference in concept, apart from the technology and the superior ability to take part in the discussions with conferencing?

    This last section about assemblies is bound to be a bit controversial, so let’s hear your thoughts…

  • Accepting Proxies at an Assembly

    Correction to the “Jalisco Condo Manual”

    On page 268 of the “Jalisco Condo Manual,” I say that before you can use proxies, you must add the ability to use them to your by-laws. This is not correct!

    You Can’t Refuse a Legal Proxy!

    It’s important to know that you cannot refuse a legally valid proxy at an assembly.

    This is because a proxy is a power of attorney.

    A Power of Attorney is a legal document, and it must be accepted. The person it names as a representive must be allowed to carry out any action specifically set out in the document on behalf of the person giving the power, as long as the person giving the power would themselves be allowed to take such action.

    Powers of Attorney are regulated by Book Four, Second Part, Title Nine of the Jalisco Civil Code (included in the “Jalisco Condo Law in English”).

    Article 2204 talks about three types of power of attorney documents:

    • publicly registered;
    • private, but signatures verified by a notario; and
    • private, without verification of signatures by a notario.

    This last one would seem to apply to most proxies.

    What’s Needed to Make a Proxy Legal?

    It must clearly say that a specific person (the person giving the proxy) is giving powers to a specific person (the person who’ll use the proxy) for a specific purpose (voting their condo rights) for a specific event (a specific condo assembly).

    It can give general powers (the proxy holder votes as they choose), or it can give specific instructions as to how the votes must be cast (a limited proxy).

    Because this is a legal document, it must be in Spanish.

    Article 70 says that the person giving the proxy must sign it, print their name, and have two witness signatures.

    It’s also important to know that the person acting for an owner by proxy doesn’t have to be an owner, or to even live in the condo. The proxy holder can be their abogado, property manager, a relative, or a friend. This person is allowed by the document to exercise the owner’s condo rights at the assembly in their place, as if they were that owner.

    Accepting Faxed or Emailed Proxies

    Accepting proxies by email or fax is convenient for owners who are away during the time of the assembly, and it’s certainly more practical (and inclusive) to do this. Fortunately, this seems to be supported by legislation.

    Article 1308 is the section that requires signatures on contracts (powers of attorney fall under this category).

    This article also specifically allows “electronic, optical, certified electronic signature, or any other technology mediums, if and when the information is generated or communicated wholly by means of the aforementioned mediums, [the signatures] can be attributed to the obligated people, [the documents] will exist permanently, and they will be accessible for further examination [the proxy form must be kept in the condo records and must not be destroyed].”

    This acceptance of contract documents by electronic media was added to the Jalisco Civil Code in September of 2006. I believe the goal was to bring Mexico in line with other countries in acknowledging the digital age.

    Most common law jurisdictions have recognised a faxed signature as legal since the 1980’s (actually, this was preceded by the legal acceptance of telegraphed signatures in the late 1800’s!). Today, courts in many US and Canadian jurisdictions have ruled that legally enforceable electronic signatures can now include: agreements made by email or fax; signing a credit or debit slip with a digital pen device at the time of sale; signing electronic documents online, and even entering a PIN into a bank machine.

    Properties Bought by Bank Trust

    On the coast, where property bought by foreigners must be held in trust by a bank, a slightly different situation exists.

    The condo law only lets the registered titleholder of the property vote at an assembly. In the case of a bank trust, the bank is the registered titleholder. Some trust agreements give the foreign buyer the right to exercise the condo rights at an assembly, others don’t.

    For foreign buyers where this is the case, the condo must have a copy of their trust agreement on file showing that they have this ability. Note that this power isn’t normally transferable, unless it specifically says so in the trust agreement. Therefore, these buyers cannot normally give a proxy to someone else.

    Foreign buyers who don’t have this provision in their agreement will need a Power of Attorney from the bank giving them the right to vote at the assembly.

    If either type of buyer can’t attend, they can ask the bank to give a Power of Attorney to a third party.

    Again, you cannot refuse a power of attorney, and the holder doesn’t need to be an owner or resident of the condo.

    Have a Standardised Proxy Policy

    I still recommend that you have a proxy policy set out in your by-laws. This avoids confusion, and helps reduce questions and challenges.

    I recommend that this policy says, at a minimum:

    • you accept proxies for your assemblies;
    • they count towards quorum;
    • you accept them by fax and email;
    • briefly what the minimum requirements for a valid proxy are; and
    • to whom they must be delivered, and a cut-off (usually the day before the assembly).

    I also recommend you use a standard proxy form that you send to all owners with the assembly call package (I give you a sample form in the BONUS Pack that comes with the “Jalisco Condo Manual”). The main reason for doing this is to make it much easier to verify the legality of each proxy. Imagine your scrutineers having to check a number of completely different forms just before the assembly. If you use your own form, they can verify them more quickly.

    Over to You

    If you have specific experience with accepting or rejecting proxies at a condo assembly, please share them in the comment section below this post. If you have a comment or a legal opinion relating to this topic, please share it below. 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.

  • Can Delinquent Owners Vote at an Assembly?

    The controversy

    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).

    Dueling lawyers

    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.