{"id":196,"date":"2013-03-10T13:16:53","date_gmt":"2013-03-10T19:16:53","guid":{"rendered":"http:\/\/jaliscocondos.org\/blog\/?p=196"},"modified":"2014-04-08T08:15:08","modified_gmt":"2014-04-08T13:15:08","slug":"can-delinquent-owners-vote-at-an-assembly","status":"publish","type":"post","link":"https:\/\/jaliscocondos.org\/blog\/can-delinquent-owners-vote-at-an-assembly\/","title":{"rendered":"Can Delinquent Owners Vote at an Assembly?"},"content":{"rendered":"

The controversy<\/h2>\n

I think I might have chosen a controversial topic for my first blog post, but I\u2019ve received questions about this topic from multiple condos both on the coast and in the Lake Chapala area, and I think it\u2019s an important one!<\/p>\n

On page 37 of the \u201cJalisco Condo Manual<\/strong><\/em>\u201d I wrote, \u201cIt isn\u2019t legal to prevent an owner from voting at an assembly for any reason, including if they\u2019re late in paying fees or assessments<\/strong>.\u201d<\/p>\n

This post has been updated<\/strong> since it was first published with an opinion from a notario (see “A conclusion…<\/strong>” at the end).<\/p>\n

So, how did I come up with this?<\/h2>\n

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\u2019t in writing.<\/p>\n

As well as this legal opinion, the opinion in my book was based on some reasoning:<\/p>\n

The condo law doesn\u2019t set up categories of owners<\/strong> \u2013 it just defines owners (or, more correctly, cond\u00f3minos<\/em><\/strong> or title holders). These owners are then given rights and obligations by the condo law.<\/p>\n

This can be interpreted as meaning that an owner is an owner, whether blue, four-feet tall, or delinquent.<\/p>\n

There\u2019s nothing in the Code to suggest that a condo owner loses their inherent rights just because they\u2019re behind on their fees. I believe that the right to be at a condo assembly, and to vote is a real right that\u2019s attached to the title of each condo unit.<\/p>\n

\n
    \n
  • The section of the Code on owners\u2019 rights and responsibilities does not qualify<\/strong> that these rights only apply when an owner is current.<\/li>\n<\/ul>\n
      \n
    • The section on assemblies simply refers to owners attending and voting, and does not in any way qualify<\/strong> this.<\/li>\n<\/ul>\n
        \n
      • 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<\/strong> (if this were the intent of the legislation, I\u2019d expect something to be found here).<\/li>\n<\/ul>\n<\/blockquote>\n

        Summary<\/strong>: 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\u2019t appear to lessen or change these rights when the owner becomes delinquent in their fees, I don\u2019t believe that a lesser authority (such as the by-laws or a Council\/Board) can override these fundamental rights.<\/p>\n

        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<\/strong> (because you can never get the minimum 75% of the total condo rights needed to pass a motion).<\/p>\n

        Dueling lawyers<\/h2>\n

        I\u2019ve been told by various condos that they have legal opinions from local abogados<\/strong><\/em> telling them that they can<\/strong> and that they cannot<\/strong> prevent delinquent owners from voting at an assembly. Yes, you read that correctly… there are conflicting, polar opposite opinions out there.<\/p>\n

        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<\/em> of the Code<\/strong>, or the Ley de Blahblahblah, Article yyy<\/em><\/strong>. 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.<\/p>\n

        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\u2019d want to have a very clear legal position to back this action up.<\/p>\n

        Without this legal backup, I\u2019d strongly recommend erring on the side of caution. I wouldn\u2019t try to stop an owner voting at an assembly because they\u2019re delinquent in their fees, unless I had a detailed (includes citations) written legal opinion from a Mexican legal professional supporting this action.<\/p>\n

        A challenge to the community<\/h2>\n

        This is a controversial and important topic. I, for one, would like a definitive answer. If I see something concrete, I\u2019m more than ready to change my position on this.<\/p>\n

        So… if any of you out there have a definitive legal opinion on this<\/strong>, please share it in the comment section below this post! If you\u2019ve prevented morosos from voting, and have run afoul of a lawsuit or other legal problem<\/strong>, please also share your story! If you prefer your comments or stories to be anonymous and unattributed, please use the “Email Us<\/strong><\/em>” tab on the left of this page to send us a private email.<\/p>\n

        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…<\/p>\n

        A conclusion… [Update]<\/h2>\n

        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<\/strong>. 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<\/strong>.<\/p>\n","protected":false},"excerpt":{"rendered":"

        The controversy I think I might have chosen a controversial topic for my first blog post, but I\u2019ve received questions about this topic from multiple condos both on the coast and in the Lake Chapala area, and I think it\u2019s an important one! On page 37 of the \u201cJalisco Condo Manual\u201d I wrote, \u201cIt isn\u2019t […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9,39],"tags":[11,18,10],"class_list":["post-196","post","type-post","status-publish","format-standard","hentry","category-assemblies","category-delinquencies","tag-delinquent-owners","tag-legal-opinion","tag-voting"],"_links":{"self":[{"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/posts\/196","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/comments?post=196"}],"version-history":[{"count":40,"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/posts\/196\/revisions"}],"predecessor-version":[{"id":625,"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/posts\/196\/revisions\/625"}],"wp:attachment":[{"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/media?parent=196"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/categories?post=196"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/jaliscocondos.org\/blog\/wp-json\/wp\/v2\/tags?post=196"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}