What defects in the notice make the owners' general meeting void?

Question

José Manuel Alburquerque · Accepted Answer

It depends on the defect and its consequences. The Catalan courts tend to annul resolutions where the defect has left an owner defenceless, that is, has prevented them from learning about the meeting or defending their position, or where it may have changed the result. Nor is a resolution valid if it concerns a matter that was not on the agenda, because the law only allows votes on what is on it. In any event, nullity is not automatic, because the resolution applies until a court annuls or suspends it, so it must be challenged in time. The requirements for the notice of the meeting The following, among others, can be alleged as defects: The meeting was not called by the president or, if the president did not call it, by the vice-president or the owners who asked for it. The notice was not sent eight calendar days in advance, unless the by-laws say otherwise or the matter is urgent. The notice was not sent to an owner, at the address they had given or to their flat, or was not put up on the noticeboard. The agenda, the day, the place or the time of the meeting is missing. The warning is missing that, in four-fifths and unanimity resolutions, the votes of absent owners who do not object are counted in favour of what the majority decides. The list of owners in arrears or the warning that they cannot vote is missing. The documents relating to the items were not sent and the notice did not say where they could be consulted. The meeting can be held without notice only if all the owners attend and unanimously agree to hold it and on its agenda. In the rest of Spain, the Horizontal Property Act (“Ley de Propiedad Horizontal”) sets other requirements, such as six days' notice for the annual general meeting, although the courts follow a similar approach. When resolutions are annulled In general, a formal defect does not in itself invalidate the meeting. The courts look at whether it has left anyone defenceless or may have changed the result: If the list of owners in arrears is missing or contains errors, the “Tribunal Superior de Justicia de Cataluña”, the High Court of Justice of Catalonia, has held that the resolutions are annulled only if this has left someone defenceless. Where the owner in arrears knew about the debt, other Catalan courts have upheld the resolutions. If the warning about absent owners is missing, it is debatable whether their silence can be counted in favour in four-fifths or unanimity resolutions. A resolution on a matter that was not on the agenda is not valid. That is why each matter must appear on it clearly and in detail. If an owner was not given notice, in principle they can challenge the resolutions as having been wrongly deprived of their vote. Even so, the prudent course is for them to object in writing within the month after receiving the minutes. What to do Nullity is not automatic. The resolution applies until a court annuls or suspends it, so it must be challenged. In general, a significant defect in the notice makes the resolution contrary to the law, so the time limit for challenging it is one year from when you are notified of the minutes. Do not leave it to the last minute, because it is not clear whether an attempt at negotiation is required before bringing a claim. Those who can challenge are those who voted against, absent owners who objected in writing within the month following notification and those who were wrongly deprived of their vote, provided they are up to date with their payments. If it is the owners' association (the “comunidad de propietarios”) that notices the defect before applying the resolution, it can call another meeting in due form and vote on it again.