15.01.20 BREAKING NEWS:
The Administrative Court in Almeria has ruled that the 'so called' 1993 agreement is null & void and has been since 1993.
The Town Hall has been instructed by the courts to ensure that, with immediate effect, all future invoices submitted to homeowners by the Junta are in accordance with the Cabrera Statutes:
"The contentious administrative appeal filed by the Cabrera Residents Association against the CITY COUNCIL of TURRE for the referenced administrative activity which I revoke for being contrary to Law and declare the NULLITY of the Agreement of January 14, 1993 of the General Assembly of the Compensation Board of Cortijo Cabrera,
as well as declaring that the maintenance / conservation expenses and urbanization expenses of the Cortijo Cabrera Compensation Board must be paid according to the method set forth in the Statutes protocolized in the Public Deed of Incorporation granted before the Notary Mr. José Mª Calvo on August 2, 1991 under number 79 of its protocol, with costs to the Administration."
In summary, the Cabrera Residents Association (CRA) took the Town Hall to court. The fact is the Town Hall had a responsibility to ensure that urbanisation law was applied correctly.
The court Judgement agreed with the CRA lawyer that for the past 27 years the Junta had invoiced Cabrera owners in accordance with the 'so called 1993 agreement' which was Null & Void. The Town Hall lawyers accepted the judgement and did not submit an appeal.
In an astonishing letter to Owners on 7 February 2020, our Junta declared the Almeria Court Judgement to be "at this moment null and void". The Junta have instructed a Lawyer to challenge the Judgement which benefits the Home-Owners. We have not seen the minutes of any meeting which was held by the Junta to approve this course of action and the associated use of Home Owners' funds. We have no knowledge of the Home Owners being consulted about this expense which is being incurred with their funds. It is unlikely that the Town Hall, as a 29.4 % stakeholder was consulted either, given that they chose not to appeal against the Court Judgement.
Please see OPEN CABRERA's thoughts on this here:
The Administrative Court in Almeria has ruled that the 'so called' 1993 agreement is null & void and has been since 1993.
The Town Hall has been instructed by the courts to ensure that, with immediate effect, all future invoices submitted to homeowners by the Junta are in accordance with the Cabrera Statutes:
"The contentious administrative appeal filed by the Cabrera Residents Association against the CITY COUNCIL of TURRE for the referenced administrative activity which I revoke for being contrary to Law and declare the NULLITY of the Agreement of January 14, 1993 of the General Assembly of the Compensation Board of Cortijo Cabrera,
as well as declaring that the maintenance / conservation expenses and urbanization expenses of the Cortijo Cabrera Compensation Board must be paid according to the method set forth in the Statutes protocolized in the Public Deed of Incorporation granted before the Notary Mr. José Mª Calvo on August 2, 1991 under number 79 of its protocol, with costs to the Administration."
In summary, the Cabrera Residents Association (CRA) took the Town Hall to court. The fact is the Town Hall had a responsibility to ensure that urbanisation law was applied correctly.
The court Judgement agreed with the CRA lawyer that for the past 27 years the Junta had invoiced Cabrera owners in accordance with the 'so called 1993 agreement' which was Null & Void. The Town Hall lawyers accepted the judgement and did not submit an appeal.
In an astonishing letter to Owners on 7 February 2020, our Junta declared the Almeria Court Judgement to be "at this moment null and void". The Junta have instructed a Lawyer to challenge the Judgement which benefits the Home-Owners. We have not seen the minutes of any meeting which was held by the Junta to approve this course of action and the associated use of Home Owners' funds. We have no knowledge of the Home Owners being consulted about this expense which is being incurred with their funds. It is unlikely that the Town Hall, as a 29.4 % stakeholder was consulted either, given that they chose not to appeal against the Court Judgement.
Please see OPEN CABRERA's thoughts on this here:
What does the Court Ruling mean for the Home-Owners?
Some initial thoughts:
- All future invoices to Home Owners from the date of the Court ruling will need to be made strictly in accordance with the official Statutes of the Junta de Compensacion. The Cabrera Junta de Compensacion will now be run in the same way as many other urbanisation programmes in Spain. The Town Hall is responsible for ensuring that the Junta operates legally.
- The 1993 “ Agreement “ has been deemed to be “null and void” by the Courts
- The Infrastructure and Maintenance costs will both be borne by ALL land owners including Developer Land owners in proportion to their land ownership and in accordance with the Statutes.
- The Developer Land-owners hold about 46% of the land. The Home Owners hold about 24.4% of the land. The Turre Ayuntiemento hold 29.6% of the land but does not have to contribute towards the Infrastructure and Maintenance costs.
INFRASTRUCTURE SPEND EXAMPLE
The infrastructure that has been included and budgeted for in the Urbanisation Plan should have been be installed by the Developers within a given time frame. The Developers obtain funding for this through the sale of houses and plots where the precise value of the required infrastructure contribution is known. Any house that you purchase should come with the required infrastructure already in place in order for it to be legal. So, indirectly, the home-owners fund the infrastructure when purchasing their properties. This applies in exactly the same way when working according to the Statutes or the so-called "1993 Agreement".
However, there may be exceptional circumstances where additional infrastructure is required which has not been allowed for in the Urbanisation Plan or budget. In this case, a SPECIAL QUORUM should be convened to approve by vote the additional infrastructure expenditure as it amounts to a change to the Plan Parcial and Urbanisation Plan.
As an example, let us consider an approved exceptional Infrastructure spend of, say, € 198,000.
The Developers will fund: (46% / 70.4%) x €198,000 = €129,375 which is 65.3% of the costs
The Home-Owners will fund: (24.4% / 70.4%) x €198,000 = €68,625 which is 34.7% of the costs
MAINTENANCE SPEND EXAMPLE
Applying the same rules to the proposed Maintenance Charges for 2020 ( €105,716 + €90,806 = €196,522):
The Developers will fund: 65.3% x €196,522 = €128,328
The Home-Owners will fund: 34.7% x €196,522 = €68,194
OVERALL IMPACT
Having made the point that the Developer land-owners must cover 65.3% of the costs, please note the costs proposed for 2020, according to the official forecast, are around €450k.
Of this €450k, an amount of around € 239k has been provisioned for the purchase of two new transformers (total cost = €198k + 21% IVA = €239.58k + undeclared loan interest over 5 years + undeclared related work). This € 239k cost should fall to the Developers in full under both the Cabrera Statutes and the 1993 Agreement, although it is funded indirectly by the homeowners when purchasing their homes.
This leaves the Maintenance cost of €196,522. The Homeowners portion of this amount is 34.7% which is €68.1k which shared between say 200 properties, would be an average cost per property of about €341. Obviously this number will increase or decrease depending on the land held by each property owner.
This represents a serious saving to Home-Owners.
In the proposed 2020 budget, the Developer Land-owners were proposing to pay €0 towards Maintenance costs in 2020 and €0 towards the €239k transformer Infrastructure costs.
ALL FINANCIAL CALCULATIONS ARE ILLUSTRATIVE AND WILL HAVE TO BE CARRIED OUT AND VERIFIED BY THE APPROPRIATE PARTIES
What does the Court Ruling mean for the Junta?
- The Junta will need to ensure that any invoices submitted to the Home-Owners are in line with the Statutes. (not the 1993 “Agreement”)
- The threshold for personal culpability when invoicing the Home-Owners has been dramatically lowered by the Court Ruling which has made the legal position abundantly clear.
- The Junta will need to pay scrupulous attention to the Statutes as they will not wish to be seen as acting in any way unlawfully.