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The current legal position – an explanation
Many owners have been confused by conflicting claims by each side of the dispute and have asked for a clear explanation of the legal position.
There have been two arbitrations, the first part was won by the CLUB and the other part was won by WimPen
That first Arbitration needed to be taken by the club to be enforced by the Spanish court, but the Courts rejected the Club's request to apply the points that they won, as the Club do not have a legal jurisdiction in Spain, so the first arbitration cannot be enforced.
The second Arbitration was entirely LOST by the Club, in which all AGMs and SGMs carried out by the Club were declared null and void, as it had not met the requirements established in the Constitution, which requires all owners to be included, something that has been done again in these latest AGMs/SGM, so they are all null and void.
All this refers to the Club whose jurisdiction is in Scotland, but we must remember that Los Claveles is in Spain, so for the execution of sentences or opinions from UK, the Spanish Court must ratify and enforce, which has not happened.
Given all these facts it is also worth remembering the only valid version of the Club constitution is that which was agreed in 2014 (This is what the second arbitration ruled).
Club Litigation against WimPen and the DOA
Regarding Mr Albert Fletcher's litigation, the vast majority of these have been dismissed or lost.
The only judgment, even though it was not entirely favourable to him, includes one point awarded to Mr Fletcher. It corrects an agenda point 6 in the DOA AGM 2018, which determines that the maintenance Fee should be determined in a Club AGM.
This point is now obsolete since it came after the modification of the Statutes in 2022, where all Club and Escritura owners are now allowed to vote in the DOA AGM.
The statutes rule that the service / maintenance fee and the unified accounts are determined by the DOA, making it the current rule. Until a Spanish court issues a judgment against these statutes, which were voted on by club and Escritura owners with an overwhelming majority, they are legally binding and enforceable in Spain, where the DOA and the community of Los Claveles are located.
For all these reasons, the Service / Maintenance fee invoiced by WimPen on behalf of the DOA, as well as the single account of the community, are the only ones with legal authority to collect the fees.
Threats from Mr Fletcher to expel owners and recover money.
With regard to threats by Mr Fletcher to reclaim money paid by owners to the Community, expel owners or even fine owners, this has no legal basis. The majority of the owners (approximate 89%) pay into the community account that WimPen administers, which is the money that is used to maintain the resort, this is the purpose of this maintenance. Mr Fletcher and the club do not pay any money for maintenance of the resort, even though they regularly invoice owners for ‘Maintenance’. therefore, it is impossible to claim this money from any owner.
23 October 2023