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The Bar Claveles Team
Are you Confused?
Separating fact and fiction
We have been contacted by many owners who are confused by the conflicting information being sent out by Sr Castro from WimPen and Mr Fletcher of the Club as well as the various court cases. so we have taken advice from a lawyer in an attempt to separate fact from fiction. These are some of the questions owners are asking.
This article is also published in the latest newsletter
FNTC are required to hand over the membership list to the Club ?
This is untrue. If there is a change of trustees, FNTC can only pass the membership list to the new trustees, not the club committee or any other owner, which would breach GDPR.
WimPen are obliged to hand over the member database to the club committee?
This is untrue, the database could only be handed over in the unlikely event of a Spanish court order.
The Database belongs to the club, WimPen should not use it?
Wrong. Article 8.6 of the DOA Statutes requires WimPen to maintain a list of members.
Can Club Los Claveles Ltd invoice owners?
No. Following the second arbitration when the 2018 AGM was cancelled, this company ceased to have any legal link with Los Claveles and their unaffiliated bank account makes no payments to the resort.
It is worth remembering that the Company, Club Los Claveles ltd, who have been sending out invoices, were appointed by the club at their 2018 AGM. That AGM was cancelled by the arbitrator so the company has no legal association with Los Claveles and therefore no right to collect fees. Do not pay them.
Any money that the Owners pay to the club, is only spent to pay the legal costs of all the processes that they have recklessly undertaken, not a single euro of the money that is paid to the Club or the Company Club Los Claveles Ltd is used to cover or pay the expenses of the Community.
The recent SGM of the the DOA confirmed the authority for WimPen to continue collecting fees on behalf of the Community and they will continue to manage the resort.
How much has been awarded against the club for legal costs?
The determination of the costs is currently being calculated and awaiting a ruling, but it is a very significant amount. There are several judgements to pay costs that have been imposed on the Club by the Arbiter and Judges, There are the partial costs of the 1st arbitration; costs of the Second Arbitration ; costs for the Appeal of the second Arbitration; Costs of the injunction application requested by Mr. Fletcher to cancel the SGM of the Association, which was not accepted by the Court who ordered Club Claveles Ltd to pay costs.
To all these costs must be added all the expenses of the Lawyers of the First and Second Arbitration that Mr. Fletcher and the Committee have hired, the proportional part of the Arbitrator’s costs that correspond to the Club, and to this must be added the cases that are still pending.
Is this really how you want your money to be spent?
Is it true that WimPen must pay the club £125,000 from the 1st Arbitration?
This is not true. Initially in the First Arbitration the Arbitrator requested in a Partial Award that €125,000.00 be delivered to the Club's funds, but in the final Arbitration Award the Arbitrator cancelled this order. In fact, it is the Club that must pay Wimpen for expenses of the First Arbitration. Once again, this is due to the actions of the Committee.
Will the club take over the management of Los Claveles?
No. The DOA is responsible through their administrators WimPen. The staff are employed by the WimPen, who also service the villas and common areas and pay all the costs. The bar franchisees and contractors are under contract to the DOA. WimPen will continue to manage and administer the resort on behalf of the DOA.
Will the club have access to the keys?
No, the keys are securely held by the reception team, employed by WimPen. To date, there is no judgment or declaration of any Spanish Court that obliges WimPen to hand them over to the club.
The judgements of the first Scottish Arbitration must now be implemented?
Wrong. To date, Mr Fletcher and the Committee have not requested the effective application of this Arbitration in the Spanish Court. Several judicial proceedings are pending, one of them is that of the Provincial Court of Arona, and a ruling is awaited. In addition to this, there are many points of the First Arbitration that cannot be executed,
The enforcement of a foreign award in Spain has two stages; a first of recognition of the validity of the award; and, a second, of enforcement of the award itself. As regards the award rendered in the first arbitration, Mr Fletcher requested and obtained the declaration of recognition of its validity by judicial decision of December 18, 2018. However, since then, Mr Fletcher has never called for the second step for the implementation of the award.
Mr Fletcher says “The Club Committee has the sole authority to administer the affairs of the Club.” Is this true?
Mr Fletcher is very economical with the truth and has clearly misinterpreted the Judges ruling in the recent case, 'Euresc S.L.' and the entity 'Construction, Financial Services Ltd' against WimPen Leisure Management S.A.', 'Community of owners of the urbanization Los Claveles', 'Club Los Claveles' and the 'Association of owners'.
At no time does the judge declare that the Arbitration is VALID and must be executed in its entirety, in fact, even in this Judgment it does not oblige that the € 125,000.00 be paid, since it was dismissed.
the Judge himself determines that the request of the Owners is not incorrect, but that he cannot be declared in this regard, since there is an Arbitral Award, but what is possible are different mechanisms of challenge and opposition to the award when its execution is sought in Spain.
Today, this declaration to which Mr. Fletcher refers, no judge can declare the arbitral award valid and enforceable, for the simple reason that Mr. Fletcher has never requested in a Spanish Court, the enforcement of that award as previously explained..
How does the case, Club Los Claveles v FNTC affect the DOA?
It doesn’t! Mr. Fletcher has commented on this judgment and the ratification of a Spanish Judge where Wimpen is forced to comply with the First Arbitration, as a success. This is NOT correct.
In this Judgment the Judge dismissed the lawsuit filed by a group of Owners who had requested the Court not to pay these €125,000.00 from the Community Funds, since they are in a joint account and this was not authorised by the Owners. The Judge dismissed this request. In fact he does not even order Wimpen to hand over these funds to the Committee, and ruled that each party to pay their own costs.
Who benefits from rental proceeds?
All net proceeds after marketing costs, benefit either the Owner or the Community. WimPen are paid a 15% commission for managing the rental programme.
Who owns the money in the bank account?
All income is paid into the unified community bank account which is owned by the entire Community of Owners, not WimPen. WimPen regularly publish audited DOA accounts. We don’t know where any fees paid to Club Los Claveles Ltd go, as the Club do not issue detailed or audited accounts.
WimPen are the contracted Administrators for the Development Owners’ Association and will manage Los Claveles for the foreseeable future.