Dear clients and friends:
On August 20th, 2016, the DECREE whereby several provisions of the Condominium Property Regime Law (the “Law”) were amended, added and repealed, was published in the Official Bulletin of the Government of the State of Baja California Sur (“State”), same that was effective as of the following day of its publication, with the purpose of simplifying the incorporation, organization, administration and modification of the condominiums in the State.
Contents and scope of the amendments
I. Currently, the Law is of public order and consequently its compliance is mandatory, exception made of the Incorporation Deed and the By-laws of the condominiums incorporated prior to this decree and therefore such instruments shall govern the social coexistence among the homeowners.
II. In addition, the Civil Code of the State was amended in order to grant the condominiums of legal capacity of their own. Now the administrator acts as the legal representative of the condominium and has broad faculties for lawsuits and collections and acts of administration, allowing the administrator to perform all kind of legal and administrative procedures on behalf of the condominium regime, and not in name of the Civil Association or other entity that administrates it, as was previously the case before this amendment. Therefore, now the following, though not limited to, may occur:
a. Execute all kinds of agreements in behalf of the condominium.
b. Obtain concessions, permits and licenses in behalf of the condominium;
c. The condominium may have its own patrimony;
d. File a lawsuit against the delinquent homeowners without the need of prior approval of the Homeowners Meeting, and
e. his provides greater legal certainty to the developers, administrators and homeowners.
III. The Law NO longer considers as homeowners the individuals that have executed preparatory agreements or promise to purchase agreements or promise to incorporate a trust agreements, only considers as homeowners the individuals that have the title to their property or the trust rights in a public deed granted before a notary public.
IV. The modality of “Tourist Residential” Condominium is created and which allows the “Developer” to determine the organization, administration and modification of the regime in an autonomous and immovable manner, in accordance with the Law and which most relevant aspects are the following:
• This modality is optional for the Developers and the requirements for the incorporation are the following:
a) That the investment of the project complies with the amounts established in the Law, or
b) That in opinion of the municipal authority it has an important economic impact.
• The Administration of the condominium may be maintained by the Developer or whom it designates, until 75% of the property of the Exclusive Property Units (“Units”) of the condominium have been conveyed.
• The payment of the ordinary fees may be calculated based on the number of Units, notwithstanding the undivided interest percentage allocated to each one of such Units. However, the voting may be calculated considering the undivided interest percentage of the Units.
• The Developer may be exempt from the payment of dues (if it is established in the By-laws), provided that the following assumptions are met:
º That the Units remain under the Developer´s property;
º That the Units do not have access roads, nor infrastructure at the lot line, and
º That no soil movements are being performed.
V. The obligation of the Administrator to maintain a homeowners’ registry book is added, which must contain, among other aspects, the conventional domicile of the homeowners so as to receive notifications and for services of process, domicile that must be located within the municipality where the condominium is located. And such domicile may be the same Unit. The need to establish a conventional domicile arises due to the impossibility of serving the delinquent homeowners, due to the fact that their domiciles are ignored or are located abroad. Therefore, this decree introduces new process serving procedural rules in order to serve process to such homeowners, which consist in the following :
a) At the conventional domicile registered in the homeowners’ registry book; or
b) By means of publishing in one or more visible places in the Condominium; or
c) In accordance with the rules of common law.
VI. Other relevant provisions of this amendment to the Law include:
• All of the minutes of the Homeowners Meetings must be notarized before a notary public and recorded before the Public Registry of the Property.
• Simplifies the publication of the calls for the Meetings, allowing the publication of the first, second and third call simultaneously.
• Allows the vote by e-mail, provided it is established in the By-Laws or the Incorporation Deed. The procedure in order to vote in an electronic form shall be approved by the Homeowners Meeting or contained in the By-laws.
• In the purchase of Units (or trusts), the notary public, in addition to the letter of no debt of fees executed by the Administrator, shall request a letter of compliance of the Design Guidelines, if they exist.
• To the delinquent homeowners of Units of domestic use, the water service may be reduced to the minimum, provided that OOMSAPAS is not in charge of the service.
• For the voting in the Homeowners Meetings, the delinquent homeowners shall not be accounted for in the calculation of the simple or special majority.
• The sub-condominiums no longer have a maximum limit of Units for its formation.
• In order to protect the minorities, the presence of a notary public shall be required in the Homeowners Meetings in which a single homeowner represents more than 50% of the undivided interest of the condominium.
This informative bulletin shall not be considered as a legal opinion nor concrete legal advice. Please do not hesitate to contact us so as to extend the contents and scope of the same.
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