ASOCIACION DE PROPIETARIOS DEL RESIDENCIAL DE MONTAÑA LOS ALTOS DE CERRO AZUL (APREMACA)

Buen día estimados propietarios.

Nuestras peticiones en estos momentos de reflexiones y restricciones, para desearles lo mejor al lado de su familia.

La información contenida en la Resolución 28 adjunta, ha sido tema de debate en este Fórum. Nos permitimos solicitarles realicen una lectura profunda de la misma.

Por medio de esta Resolución 28 de 21 febrero 2002, debidamente publicada en la Gaceta Oficial, SE APRUEBA EL REGLAMENTO PARA CALLES PRIVADAS EN LAS URBANIZACIONES Y LOTIFICACIONES UBICADAS EN EL TERRITORIO NACIONAL.

Saludos cordiales,

Iris Quintero de Simons
Presidente
Asociación de Propietarios del Residencial de Montaña Los Altos de Cerro Azul (APREMACA)
iqsimons@gtempus.com 6673-6750 236-4587

Thank you to Mrs. Simmons for posting the text of Resolution 28-2003 of the Ministry of Housing dated 21 Feb 2003. I will now endeavor to analyze the details of that resolution for those property owners who are not lawyers. I will not address every line, however, I will cover the majority of important detail and explain how these impact the owners of property in Residential de Montana Los Altos de Cerro Azul (hereinafter the development).

The development was initiated by one of Arturo Melo’s many companies on or about October 2, 1984 (long before the publication of Resolution 28-2003). I mention this only because the applicability of ex post facto laws has already been discussed at length in this forum.
Assuming a development was commenced after August 31, 1998; such a development may be designated by its promoter as a development of private streets (hereinafter gated community) under Executive Decree 36 of August 31, 1998. In such an event, the promoter must submit a plan of development to the government for approval.

Article 1 of Resolution 28-2003 states that only developments of houses of medium or high value may be designated as gated communities. The value of medium and high priced houses is not defined, however, most lots when sold would not have met this definition. Many, but by no means all, of the houses since constructed would meet the medium to high priced housing definition. The empty lots and many small houses would not meet this test to qualify for gated community status.

Article 3 states that the promoter is responsible to maintain the roads for a period of three years, although the date of the commencement of the three years is not stated so must be inferred to be the date the development commenced. After the three years, the responsibility to maintain the streets, the rain gutters adjacent to the streets and the water lines falls upon the owners of the lots.
Article 4 states that all streets, rain gutters adjacent to the streets and water lines must meet the requirements of the Ministry of Public Works (MOP) and IDAAN. I am not a civil engineer but I doubt that a single street in the development or any of the rain gutters meet MOP requirements. The water system, however, appears to exceed IDAAN standards.

Article 5 states that each buyer must expressly acknowledge his responsibility for maintaining the streets, the rain gutters, the trash collection and the lighting of the streets at night.

Article 10 reiterates the responsibility of the individual owners to maintain the streets, the rain gutters and the water system in accordance with the standards set by MOP and by IDAAN.

Article 6, paragraph 2 requires that any gated community must be surrounded on its entire perimeter by a fence. No such perimeter fence exists now or ever has existed enclosing the entire perimeter of the development which commences at the intersection of Calle Kamet/Avenida Vistamares and Paseo Cerro Jefe at Lots 95 & 96 of Vigia. Article 6, paragraph 2 requires a garita at the entrance of the gated community.

No garita exists at the entrance to the development at the point previously indicated, however, the Melo organizations do operate a garita at the entrance to the private road that provides exclusive access to the Melo fincas. Note, however, that the private road accessing the Melo fincas cannot be part of a gated community because such fincas are excluded by Article 2 as commercial operations. Consequently, any gated community encompasses only those lots in the development past lots 95 and 96 of Vigia at the intersection described above.

Article 11 requires the registration of an association of residents, not owners, with the Ministry of Government and Justice. Residents would include any maids, gardeners, housekeepers, laborers, renters or even squatters residing within the development. There are far more residents than owners and forming such an association would be less than desirable, even within the time limits set by the law in article 13. No such association was formed or registered within the time limits established by law and any associations that were nominally formed became defunct.

The most relevant section of the Resolution is Article 13 which specifically states that if the owners of property within a proposed gated community fail to comply with the requirements of Article 11 to form an association of residents within two years; the development will cease to be a gated community and its status will revert to that under Decree 36 of August 31, 1998.

The summary of the analysis of Resolution 28-2003 demonstrates that the requirements to form and to maintain a gated community (a development of private streets) has never been met in the entire time this development has existed. Very few if any of the requirements have been met. There was never a perimeter fence enclosing the entire development. There was never a garita at the entrance of the development. There was never an association of residents formed and registered with the Ministry of Government and Justice within any given two year period commencing in 1984.

This development has been under the protection of the Melo companies since its inception and we remain dependent upon the good graces of the Melo organizations to provide the service we receive from water delivery, to street maintenance and lighting to trash hauling.

The bottom line is this: This development IS NOT a gated community, as a matter of law, at least pursuant to Resolution 28-2003. We are a de facto gated community so long as the Melo organization restricts access to its private road servicing the Melo fincas.

It is improbable that the MOP or IDAAN would provide the development with the level of services we have come to expect despite the fact that we are legally, by operation of Resolution 28-2003, Article 13 subject to the jurisdiction and at the mercy of these government entities. I have not currently examined Decree 36 of August 31, 1998 so I cannot speak here to the law under which we currently hold title to our properties.

My legal analysis and opinion should not be interpreted in any manner to criticize the creation of the recently formed Homeowners’ Association (APREMACA) or the goals of its membership to advance community interests. I confine my analysis to the law as it is written as applied to the community in which my wife and I reside.

Dr. Mark P. Ort
Casa 61, Torreon