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.
GNM
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I wonder how your condo runs…are you the president of the council? It’s apparent you have thought this out very carefully. I agree, if you own, you vote.
I disagree. You can stop delinquent owners from voting (and rightfully so) by including this provision in the sanctions at your Annual Assembly. We have done it for years. In some states (Bahia Sur where Cabo San Lucas is located for example), this non-voting provision is written in state law. In Jalisco, the subject is not addressed. An overriding principle in Mexican law is that unless it says you can’t, you can! The delinquent owner’s only option would be to challenge the Assembly, which they must do within 30 days and probably at a very substantial cost – plus they would likely lose. Deadbeats are deadbeats and you don’t want them voting for some costly improvement that they have no intention of helping pay for.
First, I agree completely with your sentiment about delinquent owners. I’d very much like to prevent them from voting at an assembly. However, I’d want to be sure there’s a legal basis for this before taking such an action.
Yes, other states do allow this in their condo laws. You mention Baja California. Our neighbouring state of Nayarit also has such a provision in their condo law. This makes me even more convinced that you shouldn’t do this in Jalisco (but I accept that I could be wrong, and am eagerly looking for legal proof to sway me).
Here’s my reasoning as to why other states including this in their condo law makes it less likely in Jalisco (which does not):
I’m still looking for a legal opinion, preferably backed up. As I said in my post, I know of condos who’ve been told by abogados that they can do this, and I know of condos who’ve been told they cannot. Only one of these can be correct!
I believe Gary is right, no private agreement can deprave you from your legal rights, you can write in a notarized contract your right to kill someone – with his permission, it will still be unlawful and you will go to jail.
I think we just proved Gary right. We had an Extraordinary assembly and the developer has 51% and she hasn’t paid and so she wasn’t allowed to vote, which means as long as she doesn’t pay then nothing can ever pass, right?
We were stupid in having the meeting as we knew the outcome prior.
I agree with Juan as well, condo rights are in your title, if you can take away the right to vote then you can take away their right to pee in their toilet too….
A great point! I hadn’t thought of this.
If your morosos have more than 26% of the condo rights in total, and you bar them from voting at an assembly, then you can never hold an extraordinary assembly.
This is so important that I’ve edited the original post, and added it. Thanks!
yes a extraordinary meeting couldn t be hold and imposible for example to reconstruct the building after destruction…..!
but for a ordinary meeting and if the bylaw says the delinquent owner can not vote,that s posible to run the meeting if necesary after a 2 nd call .
the civil code is silent about the right of vote of the delinquent owners but says this one can not be the manager of a member of the board.
if we would accept the delinquent owner to vote for a ordinary meeting,he could have the control of the management of the condo appointing a friend of him or a company he has the control on, ,situation that the law doesn t accept .
all the problem is the very bad quality of the condo law in the state of JALISCO.
So you are saying that the delinquent owner owns so much that his vote would control the management. If you owned more than 50% of a company wouldn’t you want to control it? How is that a situation that the law doesn’t accept?
You’re right. If a single owner owns more than 50% of the condo rights (usually the developer), regardless of whether they’re delinquent, they can control the administration with their votes. While this may not be good or desirable, it is (as PVlady points out) in keeping with the law. Illegally (we preseme) removing their ability to vote doesn’t right this wrong.
Vincent is correct when he points out that this might be a flaw in the Jalisco Code. The condo law in many other states says that if one owner owns more than 50% of the condo rights, then another 50% of the remaining rights is needed to pass anything at an assembly. Unfortunately, Jalisco doesn’t presently have such a provision.
BTW, some developers in other states get arround this by splitting up the portion they own into parcels smaller than 50%, each registered to a different individual. I guess nothing’s perfect! That said, most of these states do specifically allow you to suspend the right of a delinquent owner to vote, so at least if they don’t pay their fees they can’t control the condo. It would be nice if Jalisco had both of these provisions.
in our condo,the developer is still owning more than 50 % and with the law in the state of Jalisco,he can vote every year to appoint a company he has the control on.
like this,the developer and the manager of the condo are two diferents company,but with the same partners.and manager.
like this the delinquent owner can manage the condo without any risk to have one of the unit sold for the unpaid fees.
he has the control of the situation.
the developper just pay the fees when he s saling a condo but could also give a statment saying all the fees are paid when that s not true.
……….!
the situation that the law doesn t accept is to have a delinquent owner manager of the condo ,that s the point 1013 of the civil code.of Jalisco.
as i said the problem is not to have a delinquent developper owning more than 50 % of the condo,the problem is the BAD quality of the law in JALISCO when in others states of MEXICO like NAYARIT,the law is excellent….how is it posible?
dears friends,check the law 675 2001 of the republic of Colombia,that s a so perfect law of condo regime.
like the law in JALISCO,it s SILENT about the right of vote of the delincuent owner.
BUT in a sentence of the supreme court SU 509 2001,the court decided that “the right of vote of the homeowner IS NOT a constitutional right and less a human right that has to be protected”,and the BYLAW of the condo can bar the delinquent owners from voting,except in the case when is needed a quórum of 70 %,where that s not posible to prevent a owner from voting”.
OMG i think we have the answer of this problem,as COLOMBIA and MEXICO have the same civil laws,the herency of the laws of the roman empire.
Unfortunately, although Columbia has a civil law system (as do the majority of countries on the planet!) it has a completely different set of laws, and court decisions there (including its Supreme Court) mean nothing in Mexico.
Just as the UK, Canada, and the U.S. all have a common law legal system, there are radically different laws and court interpretations of them in each country.