President: Legitimation to act for the benefit of the community

The TS declares that the president can represent the community in court even if he does not have express authorization from the board, nor act in his own name as owner, nor authorize the statutes, if he does so seeking the benefit of it in a consistent manner.

A community of owners reached an agreement with the promoter by which he gave a commercial place to the community, in compensation for the difference in real meters that had a community site with the meters collected in the deeds of the farm.

In a later meeting this exchange was approved, the refurbishment of the premises as a social club and the governing board was empowered to take the necessary steps to comply with the agreement, which included the elevation to public deed. These agreements were approved unanimously and were not challenged. Some time later, another meeting approved a spill to pay the amount of VAT corresponding to the premises. All neighbors without exception contributed to it.

One owner has challenged a recent agreement that, in execution of what was agreed in these meetings, intends to formalize the public deed of the transmission of that location. She considers that the agreement is contrary to the law because it modifies the constitutive title without having been approved unanimously since she has always shown her opposition. It also alleges the president’s lack of legitimacy since he has not been previously authorized by the board to act in court.

The court of first instance upheld the claim and declared that the contested agreement was contrary to the law since it has not been proven that there was unanimity that was required.

The community lodged an appeal on the grounds of confusion and inconsistency of the sentence because the agreement could not be challenged separately from the original agreement since it was not challenged, and the nullity of the agreement would cause great harm to the community.

The AP estimated the appeal and believes that, although there is no express authorization to the president, it can not be understood that he acted outside the community but in coherent defense of it. Likewise, the contested agreement is nothing more than an execution of the previous ones, which were not challenged and unanimity was not necessary to approve this agreement.

The owner lodges an appeal based on two grounds. The first is the lack of legitimacy of the president and the second is the lack of unanimity in the approval of the agreements, which implied the modification of the constitutive title and therefore the unanimous vote of the owners was necessary.

For the TS, like the AP, the transaction was approved in the first meeting unanimously, and the impugned agreement only pursues to execute what was decided in that. Regarding the lack of legitimacy of the president, the TS understands that the defendant is the community and that, in the absence of legal personality, it is the president who represents her in court. In this case, the president defends a beneficial transaction for the community and it is not true that he does it behind the backs of the community members, so he dismisses the appeal and confirms the sentence.