Fact No 1, True or False? The Club/WimPen dispute is not over. The rights and wrongs of the legal issues are matters for the club, WimPen and lawyers to resolve, not us.
False. The dispute is over. It was taken to arbitration to resolve. It has been resolved. The arbitration is over which means that the dispute is over.
What is not over is WimPen Onagrup’s contempt for the process of arbitration by not honouring the contract they entered into, i.e. to accept the outcome of arbitration as final and binding on both parties. They are refusing to comply with arbitration orders which are now having to be taken to Spanish Law to force them to comply. It is only because WimPen Onagrup is wrong in what they have done in breaking a final and binding commitment that the Club is having to take this further action. Owners do not need the Club, WimPen Onagrup or lawyers to tell them this, it is a matter of fact that WimPen Onagrup has broken its legal commitment to arbitration.
Fact No 2. True or a False? The DOA manages the common parts and employs all the staff, the Club don’t manage anything.
False. The Club manages the contract between the Club and its Members, according to the Club Constitution. In order to manage the common parts and employ the staff, the DOA Administrator is required by law to liaise with the administrators of the two other communities over funding and management, and this is not what WimPen Onagrup is doing with respect to the Club. It is not doing this because it refuses to acknowledge the legally appointed Club Administrator. These are the true facts.
Fact No 3. True or False? In the absence of a resolution to the dispute, and until such time as it is resolved, the DOA has authorised WimPen to collect maintenance payments.
False. As in Fact No 1. above, the dispute is resolved. The DOA has no authority to authorise WimPen Onagrup to collect maintenance fees. There is nothing in the statutes that govern the DOA to allow them to do this. The authority to collect maintenance payments rests solely with the Club, as per the Club Constitution. WimPen Onagrup cannot change this. This is a fact.
Fact No 4. True or False? The Community account is a combined Club/Escritura and DOA account. There is no agreement to split
False. There is no need for agreement to split the combined account. The Club AGM voted to split the accounts. The Combined DOA/Community 1 AGM held in 2016 voted to split the accounts and Mr Monedero agreed to start the process. This is recorded in the verbatim minutes. (This is why WimPen Onagrup removed from the agenda the approval of the minutes of the previous meeting at the 2018 AGM).
Having a joint account does not comply with the Law of Horizontal Property because each community is required to have its own account by law. Secondly, the Arbitrator has ordered WimPen Onagrup to split the account and return the Club’s share, and all of its other property, to the Club Committee. These are the facts. WimPen’s English solicitors stated in a letter that WimPen had started this process!
Fact No 5. True or False? The DOA has published full audited accounts. The club has not.
True. The Club has complied with Companies House regulations with regard to its accounts. It has explained to Club Members at successive AGMs why the accounts are not being openly shared while WimPen Onagrup continues to refuse to comply with arbitration orders, because this information would be advantageous to WimPen Onagrup to know, since their stated intention is to run the Club out of money. The committee gave a commitment at the 2018 Club AGM that a full set of audited accounts will be publish once WimPen Onagrup fully complies with arbitration.
The full audited accounts of the DOA are the subject of investigation by the Club Committee as the figures simply do not add up. The discovery of the illegal disposal of 1000 + cancelled weeks at the 2018 Club AGM has raised a number of unanswered questions about the accounts that Mr Barrow as chairman of the AGM, refused to hear at the 2018 DOA AGM, and Sr. Monedero, WimPen Onagrup’s Director of Resort Finance, has failed to answer when subsequently questioned.
These are the facts.
Fact No 6. True or False? Maintenance payments made to the Community account contribute to the running costs of the resort.
Whilst this is true, WimPen Onagrup is unable to say what contribution maintenance payments contribute to the running costs, because it is not able to separate out the contribution of owners’ maintenance payments for the upkeep of the common parts of the resort, from the contribution to the reserves.
Fact No 7. True or False? Maintenance payments made to the Community account get you unhindered access to your villa
The missing word is “illegally” get you unhindered access to your villa. WimPen Onagrup’s illegal collection of Club maintenance fees after 3 May 2017 when its contract naturally expired, and its illegal blocking of access to Club Members who have legally paid the Club, is the subject of legal action in the Spanish Court. That is a fact.
Fact No 8. True or False? Maintenance payments made to the club make no contribution to the resort, so owners still need to pay the community.
False. As above, WimPen Onagrup is acting illegally by not having separate community accounts, by not collecting the common parts service charge from the Club and Escritura communities, by continuing to act as the Club Administrator without a contract, by making maintenance payment requests with menaces, and by blocking access to Club Members who have already paid their maintenance to the Club. The Club has offered on 3 occasions to pay a reasonable Common Parts Service Charge but WimPen Onagrup have not even acknowledged the letters let alone calculated the charge.
Club Members who have legally paid their maintenance fees to the Club are being forced to pay an illegal authority and all of this will once again have to be taken to court to resolve because of the illegal actions of WimPen Onagrup. All facts.
Fact No 9. True or False? I am unaware of any ongoing or new court cases in Spain initiated by the club, as suggested by the club chairman.
Mr Barrow’s lack of awareness does not make it a fact that the legal case has not been initiated. The fact is that WimPen Onagrup has been written to by a Spanish Court judge to explain their actions. There are several cases in the Spanish court system including enforcement of the Arbitration award
Fact No 10. True or False? WimPen have a legitimate 6 year contract to be administrators for DOA and Timeshare community1.
False. It was made abundantly clear to Mr Barrow as Chairman of the 2018 Escritura & DOA AGM that the legitimacy of the whole meeting, never mind the contract, was being challenged. The fact of the matter is that that challenge is now about to be lodged in a Spanish Court.
Fact No 11. True or False? Approaches made to the club chairman suggesting a collaborative relationship between Club and DOA have been ignored.
The Club Chairman replied to Mr Barrow making it clear to him why a collaborative relationship could not take place while he supports the illegal actions of WimPen Onagrup.
Fact No 12. While the dispute continues, the DOA recognise WimPen as acting Administrators for the club.
As explained above, the DOA has no authority to recognise WimPen Onagrup as acting Administrators for the Club. The Arbitrator decided that the Club Committee has acted correctly according to the Club Constitution and that is the only legal authority for Club administration. Once again, WimPen Onagrup is attempting to manipulate the law with Mr Barrow’s Support.
Fact No 13. True or a False? Spanish Lawyers have confirmed that the DOA AGM, which was conducted under Spanish law, was legally convened and conducted.
This is a legal view, not a fact which will soon be tested in a Spanish Court. That is a fact.
Fact No 14. They have also confirmed that Roger Barrow’s election as president of DOA and Timeshare community 1 legitimate under Spanish law.
See 13. above.
Fact No 15. True or False? Only those holding the legal title to their weeks, ie Escritura owners and trustees, are entitled to vote at DOA AGM
False. This is a statement without evidence. It is not a fact. What is a fact is that it is about to be challenged in a Spanish Court room.
Fact No 16. True or a False? The DOA represents the whole resort and has access to the membership database for sending out communications.
False. The Club’s membership database belongs to the Club. The DOA needs permission to access the database, which it does not have. This is a fact.
Fact no 17. True or False? Many owners were unaware of recent Club AGMs and were unable to vote on important constitution changes.
Many owners? How many? And why were they unaware? Because WimPen Onagrup continued to defy the Arbitrator who ordered the return of the database to the Club, thereby making it impossible for all owners to be informed and included. The Club welcomes all owners who legally own Club Weeks at Los Claveles attending and voting at AGMs
Fact No 18. True or False? Many legitimate votes were ruled inadmissible at last club AGM.
False. Proxy votes associated with illegally disposed of cancelled weeks, and incomplete attendance forms associated with proxy votes were not legitimate according to the Club Constitution and established practice at Club general meetings. That is why they were ruled inadmissible. The Club’s Scottish Solicitor who attended the Club 2018 AGM saw the disputed proxy votes and viewed them as legally Incompetent. At least one set of proxy votes submitted by WimPen Onagrup were used without the owner’s permission which is forgery and deception.
Albert Fletcher
Chairman, Club Los Claveles