Club Los Claveles - The Definitive Legal Position
The following references definitively confirm that legally WimPen is not the administrator of the Club, nor the acting administrator, and has no legal authority to send invoices directly to Club members for the collection of fees of any kind. That legal authority rests with Hiro Bulchand who was appointed by members to replace WimPen as the Club's Administrator from 3 May 2017, and to invoice members for their annual maintenance fees from that date, via Club Los Claveles Limited, a company registered at Companies House in the UK for the purpose of collecting these fees at the request of the Club Administrator.
2016 Club AGM, 10 September 2016 - The appointment of Hiro Bulchand as the administrator of the Club
"Agenda Item 4: The Chairman called for the vote for the "Approval for the Appointment of Snr Hiro Bulchand as the Administrator". The Chairman stated that if approved then a contract would be drawn up and executed at the appropriate time.
Total Votes in favour 819. Total Votes against 14. The Chairman announced the Resolution (4- Administrator) CARRIED."
1st Arbitration Award, 1 August 2017 - Confirmation by the independent arbitrator that the 2016 Club AGM was properly convened.
"99. The 2016 [Club] AGM was well attended by members and the meeting approved the minutes of the 2015 AGM and 2016 SGM. Accordingly, in my view the proceedings of those meetings have been regularised."
1st Arbitration Award, 1 August 2017 - Confirmation by the independent arbitrator that WimPen ceased to be the Club administrator from 3 May 2017
"146. The Confirmatory Agreement [Contract] was a fixed term, three year appointment from 3 may 2014. It expired on 3 may 2017. I understand that the First Respondents [WimPen] have been reappointed by the Escritura Community and the DOA. They have not been appointed by the Club."
147. In terms of the Constitution, the affairs of the Club are to be managed by the Committee unless delegated to a management company. The First Respondents [WimPen] are no longer the administrator or management company of the Club."
The Development Owners Association (DOA) Statutes - These are the legal rules that WimPen as the purported administrator of the DOA is required to follow. These rules define that WimPen is only authorised to collect the Common Parts Service Charge from the Club's legally appointed Administrator, Hiro Bulchand.
"5.6 The Administrator of the Los Claveles Timeshare Communities will include the Common Parts Service Charge payable by members owning Undivided Shares [i.e. Club Members] in the Service Charge payable by such members pursuant to the Statutes of the Los Claveles Timeshare Communities and payment by the Administrator of the Los Claveles Timeshare Communities to the Administrator of the Association shall be a full discharge of the liability of such members to pay the Common Parts Service Charge to the Administrator.
8.3 The [DOA] Administrator shall as soon as the Common Parts Service Charge and Accounts approved by the Annual General Meeting serve upon the Administrator of the other Communities already constituted or to be constituted in the development Community a payment of that portion of the Common Parts Service Charge due and payable by Members having Undivided Shares [i.e. Club Members]"
Ever since the expiry of its administration contract with the Club on 3 May 2017 WimPen Leisure Management SA, as the purported1 Administrator of the DOA, has failed to comply with its own statutes, and has ignored repeated requests from the Club Chairman for annual invoicing of the Club's Common Parts Service Charge dues.
Note1: The 2018 DOA AGM at which WimPen was elected as the Administrator of the DOA was impugned [legally challenged] by the Club, on behalf of its members, in April 2019 and is awaiting a Spanish Court ruling, hence the term 'purported'.
Spanish Provincial Court Appeal Judgment of 3 February 2020 (which was appealed by the Club on 5 March, and is awaiting a final Supreme Court ruling) - Confirming that WimPen is only authorized to collect the Common Parts Service Charge from the Club's Administrator, Hiro Bulchand.
"The defendant [WimPen Leisure Management SA] is entitled to collect the Common Area Service Fee from the members of the Club"
WimPen Leisure Management SA as the purported Administrator of the DOA continues to invoice Club members for the full annual maintenance fee in contravention of this judgement. Legally, it is entitled only to collect the Common Parts Service Charge from the Club Administrator, Hiro Bulchand and has no legal authority to invoice Club Members directly for any fees.