NULLITY OF AGREEMENT OF THE COMMUNITY TAKEN IN THE SECTION OF PRAYERS AND QUESTIONS
The Supreme Court has established clear that regardless of the importance or impact of the agreement taken at the owners of the farm in horizontal property regime, could not take the same to not be specified in the order of the day, even in a referential manner.
It makes express mention that the order of the day is not necessary to be exhaustive, and that it only does lack consisting of related way that are going to try this in the Board of proprietors.
The funny thing is that the Provincial hearing of Valencia determined that the agreement adopted not as a special on the owners of the property tax was valid.
We review a few paragraphs that concentrate the most important of the judgment:
As well, with application of the jurisprudential doctrine outlined, the third reason has to be estimated to be opposite to that the contested judgment. Reason the appellant that with application of jurisprudential doctrine stated in judgments of the Supreme Court of 27 July 1993, on June 26, 1995, September 18, 2006 and on November 10, 2004, which "is not acceptable agreements that are not in the order of the day, not even under the heading of prayers and questions»the contested agreement relating to the installation of faucet and sink drain has to be declared null since it was not reflected in the convening of the Board of owners.
On the contrary, the Provincial Court, although it is based on the obligation to indicate the topics to be treated, required by article 16.2 Horizontal property law (LPH), declares valid the agreement, point 4th adopted although it is not included in the agenda. Based its decision on the limited economic importance of the same since focuses on the obligation to pay as an expense only by owner of 41'66 euros.
In particular, it argues that the obligation imposed by article 16.2 LPH indicate issues in the call to treat would not be incompatible with flexibility in the interpretation of that provision, must be excluded from such rigor issues, as in the present case, because of its limited economic importance does not deserve a special call.
This room may not share this doctrine, because it considers that the fact that the adopted agreement, in what refers to the appeal in cassation, concerning installation of community tap and drain basin, is of little economic significance is not an argument that allows, in contrast to the remarkable jurisprudential doctrine, declaring the validity of an agreement that was concluded with violation of peremptory norms, to put to the vote the adoption of an agreement on a matter that was in no way set at the order of the day as it stipulates that article 16.2 LPH. ...
Thus the things it is necessary all the communities of owners to ensure that issues are addressed within the strict relationship between the order of the day, proposed and notified to all the owners, if they do not want that one of them, who is a jarring, can challenge the illegal agreement.
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A judgement of the European Court of Justice limits the collection of copyright consultations of professionals.
The Court of Justice of the European Community, on March 15, 2012, issued a judgment that has transcended to the collections of jurisprudence recently, in which reads verbatim as follows:
"The concept of 'communication to the public', for the purposes of article 8, paragraph 2, of Directive 92/100, must be construed in the sense that does not include the free broadcasting of phonograms in a dental consultation, as the main topic, within the framework of the exercise of a liberal profession, in favor of the patients, who enjoy it regardless of his will. Therefore, such broadcasting does not confer to producers of phonograms the right to receive a remuneration."
This doctrine should be adopted by the management companies of intellectual property, such as the SGAE in Spain, and extend its effects to situations in which you can see a similarity with the exposed in the statement.
We outline three important points that highlights the sentence: the lack of will of the customer of the liberal professional when it comes to receive the background music, the little importance of the number of persons receiving at the same time the Phonographic communication and the absence of lucrative eagerness in the reproduction of the phonogram.
Review the judgment than a private dental practice, (and we understand that by extension any private professional practice) is not comparable to a public or open to the public, place that patients are not an undifferentiated audience but are determined individually and can access well by appointment well with the consent of the professional.
Also goes on to say the Court ruling that the magnitude of the number of persons for which the professional disseminates and allows you to hear the same phonogram, is scarce, even negligible, since the circle of people simultaneously in your inquiry is very limited and will going on each other so they are not recipients of the same phonograms.
The professional who installs this background music in your inquiry is not intended to reasonably expect an increase in their patients by the mere dissemination of music, or may increase prices for the services they provide. This means that diffusion alone not passed in the income of the office.
And as clients only access certain phonogram depending on the time of arrival at the consultation, waiting and the duration of the services that lend it, make it unrelated to your wishes and preferences, so it cannot deduce that all clients are receptive regarding the broadcast in question.
Thus, this diffusion is not lucrative and therefore the set of all perceptions detaches that a dentist (and by extension any professional), which freely diffuses phonograms in their office for their patients, (i.e. customers), who enjoy them regardless of his will, does not carry out a 'communication to the public' within the meaning of article 8, paragraph 2of Directive 92/100, (and consequently to all national legislation deriving from this directive).
Therefore, such dissemination does not confer to producers of phonograms the right to receive a remuneration.
As a result this case law emanating from the high European Court, we understand that the General Society of authors of Spain and other management bodies of intellectual property rights that operate in our territory, should encompass its policy of indiscriminate collection of copyright, and reconsider amounts intended to perceive are not legal, when in cases such as that explains the sentenceThere is a public communication by the fact that is made in private place, for a small group of people who associate in place, non-profit which diffuses it and when attendance at that place is for well other than entertainment or leisure purposes.
From our point of view, this judgment could sustain future claims not only dentists, but also consultations of doctors, lawyers, architects, engineers, notaries, say any type of professional activity for the provision of services to persons.
And also, why not, for other activities for the provision of services to people who are not professional but commercial, such as the services of hairdressing, beautician, massage, etc, provided that be can deduce that three earlier statements you qualify.
We believe that this resolution is a strong plank so that small businesses and professionals who succumbed before the inspection of the management societies, can defend them claiming this new doctrine.
If you currently have a contract with SGAE and believes that it is in one of the earlier cases, we offer you the possibility of that look at your situation. You might want to break its relationship with SGAE, we will help you if you are entitled to.