Ask: “In an extraordinary assembly in a residential building, on October 8, with more than 70 percent of the co-ownership coefficient, an automation project took place. with extraordinary quota divided in equal parts. An owner asked if the division of the quota in equal parts was the usual and the manager said yes because it was an improvement project.
“I participated in the assembly through proxy and found out about the decision when I read the minutes a week later. My agent got the proposal as it was presented.
«I immediately contacted the administration about my disagreement since they considered that the assembly was misled by the administrator by allowing the vote to be done with an equal division of the quota, when the correct thing was to vote for the project excluding the calculation of the quota that was already fixed by Law 675 and the regulations, that is, based on the co-ownership coefficient. An unsuccessful attempt was made to hold an extraordinary assembly but it was not possible to correct this error.
“Most of the owners agree with the benefit of the project. Owners with a lower coefficient are disadvantaged with a higher quota to the one that would touch us by coefficient, and those with the highest coefficient, benefited by the equal quota that is not legal.
“What can be done with this case at this time so that the law and regulations prevail and a negative precedent is not set for future projects that require approval of an extraordinary fee?
«The affected co-owners we can pay the extraordinary fee based on the coefficient given that equal division is illegal? In fact, I already paid the first of three installments that way.”
Possibility of demand
The decision of the assembly is binding and the consultant gave his approval, through a proxy, for the execution of the project and for the value and calculation of the extraordinary fee.
According to Article 25 Numeral 3 of Law 675 of 2001, The coefficient of co-ownership determines: «the rate of participation with which each one of the owners of private goods has to contribute to the common expenses of the building through the payment of ordinary and extraordinary administration fees, except when these are determined according to the contribution modules in the manner indicated in the regulations”.
When the decisions do not comply with the Law or the horizontal property regulations, the owners of the private units (in this case the ones affected because they are the ones with the smallest area), can challenge the decision of the assembly before the judge. In the same way, there are the powers to act as the administrator and the fiscal auditor.
Article 49 of the Horizontal Property Law was amended by article 382 of the General Process Code, which determines: «The demand to challenge acts or decisions of the assembly (…) can only be proposed under penalty of expiration, within the two months following the date of the respective act.. (…) In the case of agreements or acts subject to registration, the term will be effective from the date of registration. In the lawsuit, the provisional suspension of the effects of the contested act may be requested for violation of the provisions invoked by the applicant.
The owners who later express their disagreement with the decision of the assembly, cannot, without a judicial pronouncement, refrain from paying extraordinary expenses or make the payment of fees in a manner not approved by the owners’ meeting.