Is electronic notification legally acceptable?
Management of communities of properties (comunidad de propietarios) in Spain and around the world is always a tricky task. There are always owners who will not agree or fail to agree with their part of the responsibilities of paying community charges. This in the past has as such meant that all owners have need to be notified, often by registered post which has cost communities thousands of unrequired costs. Afterall when majority of the people pay their fees, the majority should not have to bare the cost of the odd few.
While many communities have started their own websites, newsletters and tweets, the question is daily asked and debated that are these communications legally binding and what happens if someone does not agree?
First of all let’s review the current paper & post format:
In most communities prior to meetings and after all meetings, the documents are all copied and either put in the post boxes of the owners, or mailed by standard or registered post.
The only one that can legally justify a notification, is the registered post. While legally it is good enough, in reality to be 100% sure you need to send a burofax, the reason being is that an owner who wants to deny having received any notification can easily claim that the registered letter sent by you was nothing more than an envelope with no content. So now a burofax costs approximately €20.00.
The virtual and paperless world
How can we replicate this in a virtual world. Well it is actually not too dificult. As far as you can prove that a certain user has logged in to a particular website and that you can verify the authenticity of the login then it is the same as proving that the user has received / seen the notification.
Compulsary Electronic Communication for all SA and SL companies
more recently the Spanish tax office (Hacienda) has rolled out the new electronic notification “notificacion electronica” and by default all Spanish SL and SA company must sign up to receive all notifications electronically. This requirement came into effect from the 1st of January 2011 and the way the system has been setup is that each company will be issued a username and a password that takes them to a private area with an inbox. All notifications are sent on a routine basis by email, notifying that you have an electronic notification which requires you to login in to their website to receive it.
While they will notify you by email, they do not guarantee the delivery of this email nor do they take it as a requirement. All notifications that are issued and sent are considered delivered after 10 days.
So is it legal?
Well that’s where the problem arises. The horizontal property law does not have anything on electronic communication, however there are ways of getting around this. At the annual or any general community meeting, the owners can agree to allow for the approval of using electronic methods as a valid means of communication. Once a quarom has been acheived each owner can individually signup and agree to receive all notifications electronically or by post. If an owner accepts to receive notifications in electronic format and if a system is setup by which it works in a similar manner to that of that TAX office, then it can be legally argued that the one has personally accepted to be responsible for logging into a website and therefore receiving notifications through a given website in electronic format.
The only important thing to note here is that the login procedure must be secure enough and comply with all security and data protection act to be able to prove that a user has logged in.
OCM, is one example of these web portals that has been created for communities of owners that complies with all the requirements in order to justify notification by electronic format.
The cost implications.
On average each community spends between 5 to 10 euro per owner per year on paper, photocopy and postage costs. Even at 5 euro per owner this is a cost of approximately 44M Euro per year that is wasted in paper and photocopies.
Communities that have gone all electronic have saved an average of 3 to 7 euro per owner per year, which in some communities is a budget of several thousands euros or more.