El Dorado Condominium lawsuit won by condominium owners after 7 year legal battle – pt1
This is a report of the final result of the lawsuits against the illegal assemblies of the Compound Condominium that was held in March, 2011
I.- What is the motive of the claims against the illegal assemblies of 2011 of the Compound Condominium?
Multiple Condominium Owners of Condominium Unit 1, from El Dorado Condominium, demanded the absolute nullity of the following assemblies: 1. Ordinary Assembly of the El Dorado Compound Condominium, of March 2, 2011, which is in public deed number 459, of Mr. Jorge Luis Ramos Uriarte. 2. Extraordinary Assembly of the El Dorado Compound Condominium, of March 9, 2011, which is in public deed number 469, of Mr. Jorge Luis Ramos Uriarte.
The reasons that led the condominium owners to claim their nullity, was that the developer called himself the first administrator of the Condominial Unit 1 — without previously consulting the owners of private units of this — in the assemblies of reference he made decisions that benefit him, and negatively affect the rights of the condominium owners:
A.- Designates as administrator of the common areas (Compound Condominium) a company (suspected to be actually controlled by the developer) called SICOM BLUE S.C., and illegally pretended to modified statutes raising the quorum for removal for this administrator, pretending it would be in practice extremely difficult or impossible to remove, which would give the developer absolute control over the common areas in detriment to the condominium owners of Unit 1 as well as Unit 2.
B.- Establishes charges on the condominium units, giving right to the administrator of the compound condominium imposed by the developer (SICOM BLUE), to have access to the units without the permission of their owners.
C.- Modifies the use of the condominium in general, including Unit 1, and the common areas from housing to tourism.
- – Without rendering accounts, unilaterally, imposes a debt greater than 19 million pesos, in its favor and against all condominium owners (in Condominium Unit 1 and 2), supposedly spent by the developer, without showing proof of any of the alleged expenses.
E.- Imposes condominium fees, without explaining their need and / or destination.
F.- Imposes the obligation to connect to SIMAPA services, when initially a development with a sewage treatment plant was offered.
II.- What are the final resolutions from the first collegiate federal court in civil matters (which ends future decisions about this main arguments in the judgment, since the rest of the proceedings can not modify that which is resolved by this federal court)?
Three Amparo trials were promoted:
1.- The condominium owners of Condominial Unit 1, together promoted the Amparo 116/2017 Trial, which was favorable, granting them protection for the purpose of declaring the absolute nullity of the two aforementioned assemblies, since Inmobiliaria El Tepalo S.A. of C.V., was not the administrator with powers of Condominium Unit 1, Condominium El Dorado. Because this condominium unit is not present, both assemblies are null for lack of a quorum and consent of the Condominium Unit 1 owners.
The reason why the Amparo resolves that Inmobiliaria el Tepalo S.A. of C.V., does not have powers of representation of the Condominium Unit One of the El Dorado Condominium, to appear at the null assemblies of 2011, is because that administrator appointed himself when this company alone constituted the El Dorado Condominium in a deed dated July 27, 2007 , in terms of Article 1011 of the Civil Code for the State of Jalisco.
That article states that his appointment can not last more than one year, but also takes into account the nature of that first designation, which does not represent the will of the condominium owners to appoint an Administrator expressed in an Assembly, if not only the developer´s, who should be limited to caring for the condominium for one year.
The original administrator had the obligation to convene an assembly a year after his appointment, so that the condominium owners could designate a private administrator, who could represent them in the assemblies of the Compound Condominium, not the self-appointed developer, as has been established in statutes that allow the First Administrator to remain in his position until the person who replaced him was appointed.
Since the term exceeds one year, it goes against the aforementioned article 1011, and without applying the legislation that regulates the Commercial Companies (Ley General de Sociedades Mercantiles), since the condominium is not a commercial company and has its own special law — the Civil Code of the State of Jalisco, which is the law that applies to the case.
2.- Real Estate El Tepalo S.A. of C.V. promoted the Amparo Trial 117/2017, which was denied, and the federal authority resolved that they are not right in any of their reasoning used in the trial against the condominium owners and with those who claimed to maintain the validity of the illegal assemblies of the 2011 of the Compound Compound, which in the previous Amparo Trial resolves that they are null, among others an existence of favorable opinion of specific lines, uses and destinations.
3.- Sicom Blue, S.C., promoted the Amparo Trial 118/2017, which was denied, and the federal authority resolved that they are not right in any of their reasoning used in the trial against the condominium owners and with those who claimed to sustain the validity of the illegal assemblies of the 2011 Compound Condominium, which in the previous Amparo Trial was resolved as null.
II.- What are the final resolutions from the first collegiate federal court in civil matters (which ends future decisions about this main arguments in the judgment, since the rest of the proceedings can not modify that which is resolved by this federal court)?
Three Amparo trials were promoted:
1.- The condominium owners of Condominial Unit 1, together promoted the Amparo 116/2017 Trial, which was favorable, granting them protection for the purpose of declaring the absolute nullity of the two aforementioned assemblies, since Inmobiliaria El Tepalo S.A. of C.V., was not the administrator with powers of Condominium Unit 1, Condominium El Dorado. Because this condominium unit is not present, both assemblies are null for lack of a quorum and consent of the Condominium Unit 1 owners.
The reason why the Amparo resolves that Inmobiliaria el Tepalo S.A. of C.V., does not have powers of representation of the Condominium Unit One of the El Dorado Condominium, to appear at the null assemblies of 2011, is because that administrator appointed himself when this company alone constituted the El Dorado Condominium in a deed dated July 27, 2007 , in terms of Article 1011 of the Civil Code for the State of Jalisco.
That article states that his appointment cannot last more than one year, but also takes into account the nature of that first designation, which does not represent the will of the condominium owners to appoint an Administrator expressed in an Assembly, if not only the developer´s, who should be limited to caring for the condominium for one year.
The original administrator had the obligation to convene an assembly a year after his appointment, so that the condominium owners could designate a private administrator, who could represent them in the assemblies of the Compound Condominium, not the self-appointed developer, as has been established in statutes that allow the First Administrator to remain in his position until the person who replaced him was appointed.
Since the term exceeds one year, it goes against the aforementioned article 1011, and without applying the legislation that regulates the Commercial Companies (Ley General de Sociedades Mercantiles), since the condominium is not a commercial company and has its own special law — the Civil Code of the State of Jalisco, which is the law that applies to the case.
2.- Real Estate El Tepalo S.A. of C.V. promoted the Amparo Trial 117/2017, which was denied, and the federal authority resolved that they are not right in any of their reasoning used in the trial against the condominium owners and with those who claimed to maintain the validity of the illegal assemblies of the 2011 of the Compound Compound, which in the previous Amparo Trial resolves that they are null, among others an existence of favorable opinion of specific lines, uses and destinations.
3.- Sicom Blue, S.C., promoted the Amparo Trial 118/2017, which was denied, and the federal authority resolved that they are not right in any of their reasoning used in the trial against the condominium owners and with those who claimed to sustain the validity of the illegal assemblies of the 2011 Compound Condominium, which in the previous Amparo Trial was resolved as null.
III.- What does the amparo granted to the condomin owners and denied to Inmobiliaria El Tepalo S.A. de C.V. and Sicom Blue S.C. mean?
The first consequence is that everything in the assemblies of the Compound Condominium of 2011 were found null, thus:
1.- SICOM BLUE S.C . is not the administrator of the Compound Condominium.
2.- The administrative board designated at the ordinary assembly of the Compound Condominium of 2011, is not the administrative board of the Compound Condominium.
3.- Every assembly of the Compound Condominium celebrated posterior to that is null.
4.- The Compound Condominium (and therefore all the common areas that it includes), have exclusively habitational use, except for the privative Unit 1, so that independently of all dictators, and the use of the condominium in general habitacional plurifamiliar (General Multifamiliar Habitation) , pursuant to the fourth clause, of the constitution of the condominium in 2007, and article 3, of the General Regulation of the Compound Condominium “El Dorado.” independently of the existence of any opinion of strokes and land use, because the constitution of the condominium and its current regulations of 2007, are those which govern the interior of it.
5.- Any attempt to modify the 2007 by-laws of the Compound Condominium and the condominal units is null and therefore the original by laws of 2007 are the only ones valid.
6.- The alleged and illegal debts recognized in the assemblies of 2011, do not have any validity.
7.- The quotas and consequences determined in these assemblies and subsequent assemblies, do not have legal validity.
These procedures are likely to continue with Amparos, promoted by the parties for ancillary issues, such as conviction in reimbursement of costs and expenses, but the decision of the main arguments, and the nullity of both assemblies in 2011, is definite and can not change. Although the delay of fulfillment of the accord with dilatory practices may occur, that delay can not modify in any sense what has been resolved by the federal court.