The Jalisco Condo Law Before 1995 – REVISED
In the “Jalisco Condo Manual,” I say that that the book is based on the condo legislation passed in 1995, and that different rules applied before then.
So what’s the situation for condos that were set up before 1995?
This is a re-write of a recent article
This is a re-write of the article I posted yesterday (June 3, 2013).
I was misinformed about some facts, and the original article contained errors. Thanks to Jim Rizzo for pointing me in the right direction to research the correct information.
It’s important to me to always give you accurate information and advice, and I appreciate it when readers point out errors and give me the necessary legal citations to find the facts.
I apologise for any inconvenience this might have caused my readers, and encourage you to re-read this article, since there are significant changes.
A bit of history…
So far, Jalisco has had three different condo laws:
Before April 11, 1985: the first condo law was introduced on March 17, 1956, and was separate from the Civil Code. This law was referenced by the Civil Code in Article 986 (under Chapter VI – Co-Ownership). This separate law was called the “Ley del Régimen de Propiedad y Condominio” (Law of the Regime of Ownership and Condominium).
From April 11, 1985 until March 6, 1995: the condo law was changed, and was still a separate law referenced by Article 986 of the code. This new law was called the “Ley Sobre el Régimen de Propiedad y Condominio de Inmuebles” (Law on the Regime of Ownership and Condominium Real Estate), and came into effect on April 11, 1985.
From March 6, 1995: the separate condo law was replaced by a new section of the Civil Code. This new section of the code was created to deal specifically with condominiums. The code also added a condominium to its list of legal entities, eliminating the need for an association.
In the earlier versions of the Civil Code (before March 6, 1995), a condominium was not a legal entity, and so a civil association was needed to legally represent the condo. The code section on associations was similar to today’s.
The law in effect when your condo was set up is the one that applies
The decree that changed the Civil Code to incorporate the condo law (among many other changes), says, “The rights and obligations resulting from actions and legal acts carried out under the authority of the previous code will be governed by the [previous code].”
Since the public registration of a condo regime is just such a legal act, the laws that apply to a given condo will be those that were in effect when the condo was set up (when the escritura constitutiva was registered).
The next two sections of this article outline the major similarities and differences between the old and new laws, but aren’t exhaustive.
Similarities…
Both the separate laws and the new code section bundle the entire condominium property under a Régimen de Condominio (condo regime). The second condo law introduced the types of condos: vertical, horizontal, and mixed, with similar definitions and characteristics. Both divide a condo into private units and common property.
The rules for setting up the condo regime were similar, and had to be registered in a public document (the escritura constitutiva), that also contained the percentage rights of each unit.
The second condo law introduced the concept of a condómino (registered titleholder).
All three laws require owners to pay fees for administration, and repairs and maintenance. The second condo law introduced the requirement for a a reserve fund.
All three laws have a provision to sell a delinquent owner’s condo rights at public auction.
In all three laws, both condo fees and voting at assemblies are proportional to the percentage property rights.
The administrative structure is similar: each version of the condo law has an Administrator. The second condo law introduced a comité de vigilancia (oversight committee). The main purpose of the oversight committee (like today’s consejo de administración) is to inspect the work of the Administrator, verify the financial accounts and the reserve funds, report to the owners about the work of the Administrator, and assist the Administrator with their work under observance by the owners.
Differences…
The first condo law doesn’t define types of condos, this was introduced in the second condo law.
The concept of a condómino (registered titleholder) does not exist in the first condo law. This law referred to dueños (owners) and propietarios (property owners).
The first condo law doesn’t require reserves, this was introduced in the second condo law.
Both of the old laws differ from each other, and from today’s law when it comes to assemblies:
- the first condo law was very basic, and had no requirement for regular assemblies;
- the second condo law introduced a general assembly that had to be held at least once a year; and
- the new condo law introduced the concept of ordinary and extraordinary assemblies, with an ordinary assembly being mandatory once a year in the first quarter of the year.
There are also significant differences amongst these three laws about quorum for assemblies, and voting rules to pass resolutions at assemblies.
The first and second condo laws had a rule that when one owner has more than 50% of the voting rights, a resolution also needs 50% of the remaining votes to pass. This was eliminated in the new condo law.
The second condo law required the Administrator to give a detailed monthly accounting to each owner on the financial state of the condo. This requirement no longer exists in the new law ( although it’s good practice for transparency). Now the Administrator is required to produce a detailed quarterly report to any owner who asks (although, again in the interests of transparency, a good condo administration will automatically send this to all owners).
The first condo law had no “Board.” The second condo law introduced the comité de vigilancia (oversight committee). The oversight committee had to have at least three members (there is no longer this requirement unless it’s in the condo’s by-laws). One of these would be the committee chair. Now there’s only a chair (presidente) by implication. The new law changed this to a consejo de administración (administrative council).
The old condo laws are more basic than the new one, and are lacking several rules that have now become law.
The bottom line…
The particular condo law that applies to a given condo is the one that was in effect when the condo was set up. Some condos might have re-established their condo regime when the major change took place in 1995, many did not.
To find out which of the three condo laws applies to your condo, you must check the date of your escritura constitutiva:
If your condo was set up before April 11, 1985, then you’re governed by the first condo law (separate from the Civil Code), and you will have an association.
If your condo was set up on or after April 11, 1985, but before March 6, 1995, then you’re governed by the second condo law (separate from the Civil Code), and you will have an association.
If your condo was set up on or after March 6, 1995, then you’re governed by the new condo law (embedded in the Civil Code), and you should not have an association. This is the version of the condo law that is covered in my books, the “Jalisco Condo Manual” and the “Jalisco Condo Law in English.”
GNM
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In Chapala Jalisco there is an effort afoot to change several civil associations into a different form, similar to a CONDOMINIO. This seems to be called a Vecinal Association or some such. The change is initiated by a so-called CONCESSION AGREEMENT. This has been initiated by a least two Fraccionamientos: CHULA VISTA and CHULA VISTA NORTE. The agreement intends to transfer ALL municipal functions to the Fraccionamientos.
This may or may not be some sort of re-registration or “regularization” required by law. But this is very unclear about why these concessions are being offered and what the nature of the civil association will morph to. If it is an agreement which turns the Civil Association (A.C.) into a CONDOMINIO with a condominium regime it is a very serious concern for many residents of another fraccionamiento AC.
Can you give any light to this situation.
Thank you.
Roger Vass (past president of an Ajiijc Fraccionamiento)
Ajijic, Jalisco
rvasssr@gmail.corp
Firstly, let me say that I am NOT an expert in the laws surrounding fraccs. They are completely different from condos, are confusing, and rely heavily on the municipality with jurisdiction over the fracc.
That said, unless the fracc is specifically incorporating itself into a condo regime, and following all of the requirements to do so, the result of the process you are describing does not appear to create a condominium. I don’t know what requirements there are to do this, but it has been done before. I know of one fracc that has section within it that became a condo.
Concessions are normally granted by an authority (such as a municipality) to a third-party to allow them to exercise that authority’s rights on their behalf. In the case you describe, this might be the municipality giving the A.C. the right to control and maintain the roads and similar infrastructure.
I’m not sure why a separate A.C. would need to be set up. I would think that the existing A.C. that administers the fracc should be able to enter into this agreement with the municipality. However, there might be some subtlety in the fracc/municipality relationship of which I am not aware.
As you say, this could be part of the regularisation process that is being undertaken by many fraccs.
For a conclusive answer on this, you will need to gather all of the details and facts and consult an abogado who has some familiarity with fraccs.
Thank you..informative.
I will proceed as you suggest.
Again..appreciate your comments.
Roger Vass