Community Politics

Between 1st and 4th centuries CE, an upwardly mobile middle-class – including masses of socially and economically freed slaves – rose to compete with rich and elite Roman colonisers in the province of Baetica (including today’s Costa Del Sol). Those changing social norms are evidenced by the emperor Vespasian, in 74 CE, granting ‘Latin Rights’ (a steppingstone to full Roman citizenship) to all the inhabitants of Hispania.

Today, it’s possible to view beautifully excavated mosaic floors of an actual Roman villa from that time, on the left bank of Río Verde, between Puerto Banus and Marbella. Roman villas were houses in the countryside including productive land, which served as a counterpoint to intense social and political life for affluent Roman citizens, without giving up the pleasures and comfort of gardens, baths and richly decorated rooms.

Mosaic floor of Roman villa at Río Verde

In coastal Baetica, the labour force (some of whom lived in the ‘pars rustica’ of those villas) produced a luxury fish sauce called ‘garum’ from marine resources which, like olive oil and wine from the land, was exported throughout the Ancient Roman Empire. The ‘pars urbana’ of the villa, by contrast, was a luxury residence where the artistic, social and economic heritage of Greco-Roman culture could be expressed in all its infinite variety.

Greek historian Polybius first described the concept of ‘checks and balances’ in political philosophy (from Sparta at the time of Lycurgus, to the Roman Republic). European Enlightenment thinker John Locke later distinguished between legislative, executive, and federative (what we now call foreign policy) powers, leading to Montesquieu’s description of a tripartite system, where political power may be distributed among a legislature, an executive, and a judiciary. The philosopher Immanuel Kant (one of my distant relatives – via his paternal grandfather John[Hans] Cant, who had emigrated from Scotland – according to my late Great Aunt, Christine Cant) observed, “As hard as it may sound, the problem of setting up a state can be solved even by a nation of devils (so long as they possess understanding)”. Around the same time, James Madison (who later became 4th President of United States of America) wrote, “you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The basic concept of ‘private property’ – foundational to many abusive political powers – already worried Jean-Jacques Rousseau, who nevertheless acknowledged its benefit to humankind: “The first man who, having enclosed a piece of ground, bethought himself of saying ‘This is mine’, and found people simple enough to believe him, was the real founder of civil society”. This universal hypocrisy of all human societies had already been noticed by Marquis de Sade: “Tracing the right of property back to its source, one infallibly arrives at usurpation. However, theft is only punished because it violates the right of property; but this right is itself nothing in origin but theft”.

The recent ‘Okupa’ movement in Spain pits private property rights against rights to enjoy housing: advocating for the unauthorised use of selected real estate (designed for residential or social purposes) which was previously abandoned or used only for speculation. Proponents of Okupa cite their roots in the social activism of popular Libertarian Atheniums of the late 19th and early 20th centuries CE, which sought to make education and culture accessible to working people: by publishing newsletters, books and pamphlets, organising excursions to the countryside, conferences, talks, theatre, poetry recitals, debates and free libraries. Some of those Athenaeums even maintained rationalist schools in which the children of workers could receive a secular and progressive education.

Spain, therefore, has a long and rich tradition of community living within which social, cultural and educational opportunities are intertwined with — and sometimes conflict with — property rights and political power. The law is fascinating in this area, specifically concerning the concept of shared elements of residential property, originating in Spain’s Civil Code of 1889 and elaborated by the Law of Horizontal Property of 1960 (LHP) which has been incrementally modified since then. Where elements of a residential community (such as gardens, thoroughfares, reception spaces or lifts) have more than one owner, LHP provides a governance structure with inherent possibilities for tailoring to the particularities of a community, as if it were a microcosm of an Ancient Mediterranean city state. One such place on the Costa Del Sol is a naturist community of homeowners near Estepona, called Costa Natura.

Costa Natura currently has a troubled history of incorrect application of LHP – exacerbated by misunderstood drafting errors in its Community Statutes/bylaws – which have exposed its successive owners to risks of corruption, from within and without. This blog post attempts to explore and understand some ways in which misunderstandings have led to abuses of power in the community. I hope to share thoughts with others; perhaps also to create a conversation about how community governance could improve.

LHP Article 13.1 provides for four governing bodies: Board of Owners (i.e., all owners, who must meet at least once per year); President; Administrator and Secretary. The Community Statutes of Costa Natura (perhaps, illegally) assign the roles of Administrator and Secretary to the same entity; thereby, removing an important ‘check and balance’ against excesses of power. Indeed, the provision of combined ‘Secretary-Administrator’ services to communities of homeowners appears to have burgeoned into a lucrative business on the Costa Del Sol, whose practitioners may obtain private benefit from maximising their political authority over a community.

The Board of Owners could be likened to a ‘legislative assembly’; the President (plus Executive Committee) to an ‘executive power’; whilst the Administrator should function akin to a ‘civil service’ and the Secretary should take notes (with judicial powers seconded to the Spanish state). In practice, however, a September 2022 meeting of the Board of Owners was chaired and dominated by a quadruple-powered Secretary-Administrator-Chairman-Judge (not an owner) who has since publicly congratulated himself on Instagram for finishing a general meeting in another community “with all points unanimously approved”. It is quite worrying that an individual with only an administrative role perceives it as his task to influence the outcome of any meeting. On the contrary, I believe that the ‘Administrator’ should do only administrative work, the President should chair meetings and disputes on points of law should have an independent arbitrator.

The aforementioned Secretary-Administrator plus current representatives of the owners (and their predecessors) have all refused to provide minutes or accounts to me from prior to my ownership, although past decisions of the community are not binding on new owners unless they have been registered with state authorities (this point is often misunderstood or misrepresented); my correspondence with state authorities indicates that no past decisions of Costa Natura co-owners have ever been registered with state authorities. Nevertheless, LHP Article 20.1e) requires the Administrator to “keep at the disposal of the owners the documentation of the community”; I believe this legal obligation should also explicitly require that said documentation be provided at request of any owner in electronic format, within a specified timescale.

Despite repeated refusal by responsible people to provide me with documentation of the community, I was able to obtain some past minutes (dating from 2008) from some other owners. I observed from those minutes that on no occasion has the total number of owners in the community ever been documented (I estimate it to be approximately 150, since numerous entities own more than one property unit). Hence, it is impossible to know if the quorum defined in LHP Article 16.2 (>50% of owners and participation quotas) has ever been obtained.

All past meetings appear to have been held on ‘second call’ (suggesting that a quorum may never have been obtained) and the outcome of many past votes is impossible to verify, since all legitimate decision-making requires data on a percentage of total owners – not a percentage of participating owners (whether in-person or by proxy) – who vote in favour. Hence (especially since all past meetings were held on ‘second call’), it is clear from LHP Article 17.8 that most resolutions requiring a favourable vote by >50% of owners could not have been definitively approved (although may have had a provisional result) until 30 days had elapsed once absent owners had been provided with minutes plus an opportunity to object. Despite explaining this perennial procedural error to the first meeting I ever [partially] attended, the responsible individuals (including three members of Ilustre Colegio de Avocados de Malaga hired by the individuals in power and another who is an elected representative of the owners) still appear unwilling to understand and the Secretary-Administrator is yet to provide any denominator (total number of owners in the community).

A person described as “Community Lawyer” since 2007, who in 2018 signed a secret contract with the President to receive approximately 3.000€ per month, every month, indefinitely, for no understandable justification – has repeatedly stated (whenever whichever ‘President-of-the-moment’ wishes to oppose something) that “any changes to any common-ownership areas require unanimous consent of all the homeowners” (which has not been true in law since 2013). Whereas, several successive Presidents have taken decisions to modify and/or privately-lease common areas and to employ additional staff without any consent from the Board of Owners.

Multiple items correctly submitted for meetings of the Board of Owners have been altered without consent or refused from agendas in 2022. Some minutes have not even included a list of people present at the meeting. The text of an approved resolution at the most recent meeting was changed in the published minutes from what had been voted on. When complaints have been made about manifest errors in minutes, individuals in power have refused to inform owners about said errors. My interpretation of LHP Article 19.3 is that corrections must be made prior to the next meeting (in a temporal sense) and communicated to all owners at the earliest convenience (which has not occurred).

The reception building of Costa Natura community is occupied by employees of a rental agency which provides services to some owners, to the exclusion of others, in contravention of LHP Article 17.4. That reception building is the only location where mail for owners can be physically received (private apartments are inaccessible to delivery people), yet the occupants of the reception building refuse to be accountable for owners’ correspondence and have previously interfered with it. The Secretary-Administrator has refused to provide an accountable system for me to receive private correspondence to my property address, one of its duties under LHP Article 20.1 (to “Ensure the good regime of the house, its facilities and services”).

No physical noticeboard for the Board of Owners appears to exist for the legal purpose of ‘service by publication’ (LHP Article 9.1h); therefore, I do not know what mechanism may be used by the administration of the community to prove due diligence in their communications with owners. I suspect that some communications may have been purposefully withheld from owners for malicious legal motives: For example, LHP Article 21.3 requires a document stating that debtors have been notified before an Administrator can apply to court for claiming a debt, which might have potential for falsification. I do not understand why LHP Article 21.5 states that, “the debtor must pay … the fees and rights that both accrue for their intervention, whether or not the court complies with the order for payment” [my italics].

LHP Article 19.2f) states that minutes must record, “if relevant for the validity of the agreement, the names of the owners who voted for and against”, which is vague and imprecise. It seems that knowing how an owner votes may be relevant in two circumstances: 1. If that owner is directly “affected” by a modification on adjacent private or common land, then their specific consent may be required in addition to an overall level of agreement; 2. If a dispute arises after the meeting, the direction of that owner’s vote could alter their eligibility to challenge the decision in court. To cover both circumstances and for independent verifiability, I think a confidential record of all votes of all owners should be securely and independently maintained (but not published in the minutes).

The Community Statutes require eight owners to comprise an Executive Committee. Seven owners in the community currently hold responsible positions yet refuse to describe themselves as “Executive Committee”; instead, they call themselves “owners’ committee” with the words, “Friendly – Honest – Open. The Best Family Naturist Resort in Europe” in the subtitle of all their decrees (described as “newsletters”). Those seven individuals refused to permit any other owner to fill a vacancy on the Executive Committee when one of their number resigned, despite that a meeting of the Board of Owners occurred since. Four of the seven also held responsible positions under the previous President (who wrote in an email that an owner was “not a member of the Board of Owners” and stated that all decisions were made by him), yet repeatedly refused to hold him accountable for repeatedly exceeding his powers. In a November 2022 newsletter, those seven individuals in power have written that they intend to issue financial “penalties” (not apply interest to debt) to owners with debts and that they recently hired someone to paint colourful pictures on a community-owned façade (without any consultation with — nor consent from — the Board of Owners); they also admitted using money belonging to co-owners to purchase beach umbrellas and sun-beds for a commercial enterprise outside of the community.

All meetings of the individuals in power are held in secret; no agendas or minutes of their meetings are ever shared with the Board of Owners; financial information is opaque and numerous expenses have inadequate explanations. The declared annual budget of the community of owners exceeds 700.000€, of which most costs are not understandable. 5–6 staff are employed by the community, of which only 2 gardeners can be observed to do regular work.

I believe it to be imperative for ‘checks and balances’ to be introduced, including by separating the roles of Administrator and Secretary. The Board of Owners must implement a digital communication net for exchanging information directly with one another at any time (not only with the Secretary-Administrator) and all information must be transparently shared to reduce its vulnerability to manipulation for private gain.

In the meantime, LHP Article 22.1 implicitly allows a possibility for co-owners to pay creditors directly, where corrupt intermediaries may be suspected. The requirement to be “up to date with debts” in LHP Articles 18.2 and 22.2 before acquiring full legal rights may be vulnerable to abuse, in cases where those debts may have been falsified. Spain does not appear to like real estate appearing abandoned and entrepreneurs exist who may exploit valid legal provisions for private gain; it is essential for all co-owners in this community of homeowners to take shared responsibility for radically improving its governance.

The beautiful mosaic floor of the Roman villa at Río Verde depicts an exclusive and high-class Ancient Roman society, infused with art and culture. A Medusa-Gorgon image stares up, threatening to turn into stone those who look directly in her eyes. Another head of Medusa exists in the garden of Costa Natura community of owners, carved from sandstone by a previous resident — perhaps to deter evil spirits, protect the inhabitants and promote good luck.

Medusa at Costa Natura

Río Verde Roman villa may have been damaged by a fire during the 2nd century and by a tsunami in 365 CE, then lost until it’s rediscovery by archaeologists in July 1961. Will rising sea levels soon transform Costa Natura into a lost Atlantis, for future AI archeologists to discover?