LETTER TO THE OWNERS OF THE MSP
Given the different initiatives that are being carried out by some individual owners and Presidents of Owners' Associations belonging to the La Marina de Sotogrande Special Plan (MSP), the new managers of SOTOGRANDE, S.A. would like to inform you of the following:
LEGAL STATUS OF THE MSP
The area of activity of the La Marina de Sotogrande Special Plan (MSP) is set out in the following map:
Therefore it includes the following elements: the entirety of Avenida La Marina; the road between the Marina and the promenade between Paraíso and Jungla del Oro; the Paseo del Mar; access to the Islands and Shores with seven illuminated bridges; interior road of Ribera del Emperador; Open Spaces and Public Garden Areas; Garden Areas, open spaces in the town's and/or private plots; 679 Public Parking places; pumping stations, sewage network and purifiers; drain system; street lighting; fibre optic television network; drinking water network; watering system; other systems and infrastructures.
Both the areas and facilities mentioned (except areas of public domain and use and others excluded in the Special Plan) are private property.
Both the areas and facilities described above are completely independent from the common areas included in each Owners' Association founded under La Marina; therefore these Owners' Associations do not have any type of power over the Special Plan.
Both the areas and the facilities described above are also completely independent from the land included in the administrative concession of the Puerto Deportivo de Sotogrande.
Therefore, there are three different types of territorial scopes:
• The Owners' Associations formed to preserve and maintain the buildings built in La Marina. Their territorial scope is limited to the specific building and common areas of said building. Each Association organises their services in the way they see fit; these services are totally compatible with and independent of the services provided in the MSP. Each individual owner must pay the Association fees, according to the provisions of the Association's statutes.
• El Puerto Deportivo de Sotogrande, whose management corresponds solely to PUERTO SOTOGRANDE S.A., in which Sotogrande S.A. does not have any stake.
• The so-called La Marina de Sotogrande Special Plan (MSP), whose scope has been defined previously, and which includes public and private areas. The MSP provides services that will be listed below and for which the owners included in this Plan pay a fee, which is completely independent of the fee they pay in the Owners' Association because it corresponds to completely different services.
The Owners' Associations are governed by their own Statutes, as with any other horizontal property. In this type of property there are individuals owners of each apartment who also have a co-ownership right to the common elements or areas.
The Puerto Deportivo de Sotogrande also has special regulations set forth in its Statutes of use.
Finally, the MSP is regulated by the REGULATIONS FOR THE LA MARINA DE SOTOGRANDE SPECIAL PLAN, which are duly registered in the Property Registry and which have included the title deeds signed by all of the owners in the Special Plan. These regulations govern operations in this special scope and establish the norms and relationships between SOTOGRANDE S.A. and every owner. Thus, the Owners' Associations do not have any interaction with the MSP, given that there are direct relationships between Sotogrande S.A. and every owner.
Maintenance of the areas and facilities included in the Special Plan currently corresponds to the company SOCIEDAD CONSERVACIÓN DE LA MARINA SLU, whose sole shareholder is SOTOGRANDE S.A. Assigning maintenance to this new entity is a decision that was recently made by the new owners of SOTOGRANDE S.A.
For our purposes, we would like to highlight regulation 3, which governs ownership of the areas and facilities included in the plan we are analysing. This regulation is as follows:
1) In principle, every property owner is also the owner of an inseparable share in the condominium of the areas and facilities defined as private property.
2) Acquisition of this co-ownership is suspended if the circumstances set out in Regulation 2.1 are not fulfilled. This Regulation essentially states that no owner shall acquire co-ownership of the elements in the Special Plan until the conservation entity set out in said regulation is founded.
3) Based on the above, it can clearly be stated that the MSP areas and facilities are the property of SOTOGRANDE S.A. (except for those which are legally excluded).
Thus, there are two conclusions from the above:
1ª The current owner of the MSP is SOTOGRANDE S.A., except for the legally excluded areas.
2ª Neither the individual owners nor the Owners' Associations founded in the various buildings have any legitimacy over the elements included in the MSP.
So that all of the owners included in the MSP are informed, the services provided by SOCIEDAD CONSERVACIÓN DE LA MARINA SLU (previously SOTOGRANDE S.A.) are as follows:
1.- Water supply: The services include comprehensive maintenance of the entire drinking water system down to the individual meters and the total consumption of the drinking and irrigation water supply for the entire complex, regardless of its final use, that is, whether it be private or for the community (swimming pools, etc.), for watering, etc.
2.- Cleaning and rubbish collection (complementary to the Municipal service: the service MSP provides includes home rubbish pick up and transfer to a A.R.C.G.I.S.A. collection point centralised at a coordinated logistical point.
3.- Landscaping in public and private spaces: Full maintenance of landscaping in public and private spaces in an existing 10 acre area of landscaped gardens: Mowing, pruning, cleaning, pesticide application, plant replacement, etc.
4.- Surveillance of the entire property complex: Sotogrande has contracted one of the leading Spanish security companies to provide Security and Surveillance of the entire property complex subject to this report. This includes access control at all of the development's vehicular entrances, equipped with extensive modern facilities and specialised trained staff.
5.- Pest Control (rodent extermination and anti-mosquito treatment): Sotogrande has contracted a certified company specialised in Pest Control and lends its own resources to carry out the required schedule of actions to keep rodent and mosquito levels under control throughout the complex. All incidents are treated immediately.
6.- Infrastructure Maintenance:
6.1.- Drinking and Irrigation Water System, Fire Protection (hose pipes and extinguishers): Using our own human and material resources, as well as with the collaboration of certified companies specialised in fire protection, and in coordination with the Sotogrande Water Concession Service which belongs to Sotogrande S.A., maintenance of the drinking and irrigation water networks is coordinated and maintained across the 10 hectares of public and private landscaped areas, as well as the existing fire protection network.
6.2.- Sewage Network: Using our own human and material resources, in coordination with the Sotogrande Water and Sewage Concession Service, and in collaboration with highly experienced, specialised companies, the necessary actions are taken to carry out preventative and corrective maintenance (network/manhole cleaning) at all times in order to guarantee the correct operation of the existing network:
6.3.- Lifting stations and sewage network discharge: Using our own human and material resources, in coordination with the Sotogrande Water and Sewage Concession Service, and in collaboration with highly experienced, specialised companies, the necessary actions are taken to carry out comprehensive maintenance of lifting stations and the sewage network discharge in the residential complex.
6.4.- TV Network: A TV service is offered with the latest in fibre optic technology, based out of a cutting-edge facility located in the Puerto de Sotogrande and which reaches all of the buildings in La Marina, with the latest technology and the best image quality. There are currently 112 channels offered, according to the list attached below, with a great variety of contents and in at least 7 languages. All of this is offered with agile, effective customer service in case of incidents, which guarantees quality, continuous reception.
6.5.- Public Lighting Grid: Through contracts with specialised companies and with our own human and material resources, all of the necessary tasks to maintain the condition, efficiency, and operation of the public lighting grid are carried out; consumables are replaced immediately and an exhaustive preventative maintenance service is performed.
6.6.- Security System: Through contracts with specialised companies and with our own human and material resources, the necessary tasks are carried out to periodically replace and maintain the security system.
6.7.- Roads and traffic signals: Through contracts with specialised companies and with our own human and material resources, the necessary tasks are carried out to periodically replace and maintain horizontal and vertical signals, as well as the entirety of the road system in the residential complex.
The quality of the services provided is guaranteed by the quality seals ISO 9001, ISO 14001 and OHSAS 18001, attained to date and issued by the internationally renowned Bureau Veritas auditing firm.
COST OF THE SERVICES PROVIDED
MSP Regulation 4 establishes a fee that must be paid by each of the owners to cover the costs of the services provided. Currently, this fee is €11.78 per m2, which is substantially lower that what is paid in other associations and Special Plans.
As an example, we have compared the fee charged in La Marina de Sotogrande with two Owners' Associations of similar characteristics, Apartamentos Playa and Puerto de Sotogrande. This comparison can be seen in the table below, where the MSP fee is much lower than the others.
MSP LA MARINA 11,78 Euros/m2
C.P. APARTAMENTOS PLAYA 22,36 Euros/m2
MSP PUERTO SOTOGRANDE 18,08 Euros/m2
Also of note is the increase in defaults in the MSP in the last 6-7 years, doubling its amount to reach a debt of 3.5 million at the close of 2014. These outstanding payments account for approximately 25% of the company's annual invoicing, which amounts to extraordinary financial, legal and personnel costs that Conservación de la Marina S.L. must deal with..
Finally, it is important to mention that there are several court rulings that recognise the obligatory nature of paying the fee established by the MSP. In all of these cases in which the non-mandatory nature of paying the fee was alleged, the courts have dismissed the claim, and ruled that the plaintiffs should pay the cost of the legal proceedings.
FOUNDING OF A CONSERVATION ENTITY FOR THE MSP
After the corresponding legal study conducted by specialists in the field, SOTOGRANDE S.A. has reached the conclusion that currently the legal conditions are not in place that would require founding a Conservation Entity for the MSP.
Until the Town Council of San Roque planning is completely adapted to the provisions of the Law of Urban Planning of Andalusia, the provisions of Transitional Provision Six of said law are applicable. Additionally, the fact that Sotogrande S.A. is currently the sole owner of the MSP further reinforces this argument.
Furthermore, any initiative attempting to found the conservation entity would result in a clear violation of the provisions of Regulation 2.1 of the Special Plan Regulations. If this initiative corresponded to an owner, it could give rise to the personal liability of said owner for violation of the provisions of the purchase deed and other conditions which are duly registered in the Property Registry.
Finally, we would like to mention the ruling handed down on 27 April 2015 by Court of First Instance number one of San Roque in the Preliminary Investigations 113/2014, which had begun as a result of the complaint filed by several MSP owners. Said ruling dismisses the complaint given that there was no type of criminal offence committed by Sotogrande S.A. when founding and maintaining the MSP.
SOTOGRANDE S.A.'S POSITION
Given all of the information provided above, the position of the new owners of SOTOGRANDE S.A. with respect to the MSP is as follows:
1 - SOTOGRANDE S.A. is the sole legal proprietor of the areas and facilities included in the La Marina de Sotogrande Special Plan, except for those legally excluded.
2 - SOTOGRANDE S.A. does not consider that the Owners' Associations or their Presidents have the legitimacy to discuss any type of action to be taken concerning the MSP, given that relationships arising from the MSP are established directly between Sotogrande S.A. and the individual owners, who are bound by the Regulations of the La Marina de Sotogrande Special Plan included in all of the title deeds and registered in the registry folio for each property.
3 - SOTOGRANDE S.A. will defend, with all of the legal means within its reach, the rights and powers arising from this ownership against those who directly or indirectly attempt to modify the Regulations of the La Marina de Sotogrande Special Plan.
4 - SOTOGRANDE S.A. firmly believes that currently it is not legally mandatory to found a Conservation Entity given its condition of sole owner regarding the lands upon which said entity could theoretically be based. Thus, SOTOGRANDE S.A. will perform all administrative and legal actions necessary to defend maintaining the current system.
5 - Notwithstanding the foregoing, SOTOGRANDE S.A. publicly states its intention to listen to all individual owners of the MSP by set up a Monitoring Committee elected by the individual owners, independent of any Owners' Association Board, with the aim of improving communication between all parties and obtaining greater transparency in management. For these purposes, SOTOGRANDE S.A. is creating a website which each owner can access using the username and password provided to them.
6 - At the same time, SOTOGRANDE S.A. invites all owners to participate in the meeting that will be held for this purpose, and of which they will be notified in advance.
I hope the information provided is of interest. Kind regards,