Tuesday, August 24, 2010

Condominium Law - Nayarit and Jalisco - Legal Opinion

Condominium Law Nayarit and Jalisco


Similarities

• Requisites for Formation
• Definition of Private and common Areas
• Types of Condominiums
• Obligation of the Condominium Owners
• Administration of the Condominium
• Powers of the General Assembly of Owners
• Role of the Board of Directors/Vigilance Committee
• Role of Administrator
• Procedures for meetings, quorums, maintenance fees
• Procedures for Disputes and Sanctions
• Extinction and/or destruction of the Condominiums

Differences

Jalisco

• Size limit of 10 hectares and maximum of 2,500 habitants which can be increased by up o 20%
• Definition and requirements for a condominium of municipal services
• Possibility of a condominium being authorized in “obra negra” through certifications

Nayarit

• Specification of areas for handicapped individuals
• Insurance requirement to cover earthquake, flood, explosion, fire and liability
• Limitations on number of proxies one can hold; administrator may not hold proxy in meetings
• Renters have right of first refusal to purchase
• Specific Section on presales (Bond, Trust, notarial declaration)
• Specific fines for failure to pay maintenance fees and for violations of the by-laws

General Overview

In 2002 the Condominium Law in Nayarit was completely modified, sections pertaining to time share were removed and the new Law which Regulates the Condominium Property Regime for Real Property for the State of Nayarit was approved, repealing the 1985 law. This law is not part of the Civil Code of the State of Nayarit. Generally speaking and in this person’s opinion, the Nayarit condominium law is less vague than its counterpart in Jalisco but often gets bogged down in detail and in places actually contradicts itself. That said, the law reads more like a manual on how to organize a condominium and in some cases can be much clearer when dealing with certain issues, especially regarding an age-old issue, the lack of payment of maintenance fees.



The 1995 reform of the Civil Code and its subsequent modifications encompass the rules and regulations regarding condominiums in the State of Jalisco set forth in the Sixth Title, Articles 1001º through 1038º. The Jalisco law is less specific but adheres to common rules and regulations that are probably more familiar to owners.

Condominium Meetings and Necessary Approvals

Jalisco

In the State of Jalisco, the ordinary meetings are to be held each year, once a year, in the first quarter of the year. The law is specific regarding what should be discussed at the meeting;

1. Report of the Condominium and financials;
2. Election of Board of Directors;
3. Designation of Administrator; and
4. Approval of Budget.

All other items are reserved for the extraordinary meetings which can be called at any time.

The meetings can be called by the administrator, the board of directors or by the Civil Court judge if a group of 20% of the owners request or by any one owner if more than a year has gone by without a meeting. Ordinary meetings require a minimum of 15 days notice.

In order to hold the meeting, a minimum quorum of 51% of all of the homeowners must be present or represented on the first call to order. If there is no quorum on the first call to order, the meeting shall be held on the second call to order, with whomever attends and that meeting shall be held no sooner than seven days following the first call to order nor later than 15 days.

Extraordinary meetings can be held at any time with at least 20 days notice. There is no minimum quorum but for a resolution to be valid, it must be approved by at least 75% of all of the owners within a period of 30 days following the meeting.

Nayarit

In the State of Nayarit, the ordinary meetings are to be held every six months and the law only makes reference that said meetings should deal with the administration of the condominium. All types of meetings shall be called by either the administrator, Vigilance Committee or 25% of the owners (no need for a judge) and only require 8 days notice, less if the subject matter is of an urgent nature.

In all meetings 75% of all of the owners is the quorum necessary on the first call to order. If there is no quorum, the second call to order is to be held 30 minutes following with a required quorum of 51% of the owners. If there is no quorum on the second call to order, the meeting shall be held on the third call to order, held 30 minutes following the second call to order, with whomever is present.

In Nayarit the modification of the condominium regime requires the presence of at least 51% of the owners in attendance and approval by 75% of the total value (%) of the condominium AND 51% of the total owners. This means that if there are 6 owners and one of the 6 has a large unit, we still need 4 to approve the modification even if with less we get a 75%. The requirements for the modification of the by laws however, has contradictions and is less clear.


Final Comments

Finally I think it is always important to note the following when dealing with a condominium.

1. In all condominiums, rules and regulations are subject to change. For example, even if a building is “pet-friendly” now, there is no guaranty that it will remain so in the future. There is nothing in the law that provides for a “grandfathering” clause or similar.
2. It is important to check the by-laws; the by laws can be more conservative than the law they cannot be more liberal.
3. The by-laws and the law are only as good as their enforcement; there are no condominium police.

1 comment:

  1. Do you provide administrative services for condominium buildings South of town ? We would like to discuss the possibility of acquiring your services.

    Captain Steve Unit #5 322 221-6081

    ReplyDelete