New changes and important details regarding the new Horizontal Property Law (Law 284 of February 14th, 2022)

Ricardo Ceballos

By: Ricardo Ceballos 

1. Article 2 of Law 284 of February 14th, 2022 (hereinafter “the Law”) mentions and explains the guiding principles of the Horizontal Property System

1. Peaceful coexistence and social solidarity

2. Right to due process.

3. Right to petition.

4. Principle of confidentiality.

5. Respect for decisions.

6. Respect for human dignity.

7. Sustainability and social role.

 

2. Numeral 27 of Article 6 of the Law contains the definition of the term “moratorium”, which is as follows: It is non-compliance in the payment of the common expense fees within the term established in the Co-ownership Regulations; if this term is not defined, the last day of the month shall be deemed to be the due date for payment.

 

3. Article 24 of Law 284 establishes that the owners of real estate units with shared elements shall bear in equal parts the costs of maintenance and repair of the elements of the mezzanines and walls that are common to them. If it is proven that one of the affected parties has caused the damage, the latter must assume the repair costs within thirty calendar days.

 

4. Numeral 4 of Article 28 of the Law stipulates that owners who are delinquent in the payment of common expenses may be denied security and surveillance services, correspondence, concierge services, permits for the entry of materials or permits for remodeling or construction in the unit.

 

5. Article 46 of the Law creates a mandatory contingency fund to cover and finance obligations, works or expenses that arise and which are not contemplated in the current budget of the horizontal property and which, in addition, directly affect the financial situation and the proper financing of the real property. The Contingency Fund corresponds to at least 1% of the total income and annual common expense fees collected, which must be compulsorily included as part of the budget to be approved at the ordinary annual meeting of the Assembly of Owners.

 

6. Article 56 of the Law establishes the obligation of the owner to attend the Assembly of Owners meetings and that the owner who does not attend the Assembly of Owners meeting will be imposed a fine of a minimum of 20% of the common expenses fees. The Assembly of Owners may increase this percentage.

 

7. Article 74 of the Law stipulates that the initial designation made by the developer of the members of the Board of Directors must be renewed by the owners at the time of the transfer of 51% of the totality of the real estate units comprising the real estate property, regardless of whether the project is carried out in stages or phases.

 

8. Article 78 of the Law establishes that the members of the Board of Directors may resign, for any reason, from the offices they were elected by means of an explanatory note to the remaining directors. The resignation must be notarized and registered by the resigning director at the Public Registry within a term not exceeding 30 calendar days and shall be signed by the resigning director. During this period, the resigning director shall remain in office until his resignation is registered.

 

9. Article 80 of the Law establishes that the Board of Directors is not authorized to exempt common expense fees, including surcharges, fines and extraordinary fees.

 

10. Article 83 of the Law establishes that the members of the Board of Directors shall not be personally, legally, administratively or criminally liable for the actions they execute in the exercise of their office and by mandate of the Assembly of Owners, in accordance with the Law. Likewise, the members of the Board of Directors may not be subject to civil precautionary measures of a personal nature or in their assets, for the actions they carry out in the exercise of their office and by mandate of the Assembly of Owners.

 

11. Article 92 of the Law stipulates that whoever holds the office of administrator of a horizontal property must have a managerial profile, with knowledge of human resources and the labor system, conflict resolution, accounting and the management of the horizontal property legislation.

 

12. Article 96 of the Law establishes that the administrator shall not be personally, legally, administratively or criminally liable for the actions carried out in the exercise of his office and by mandate of the Assembly of Owners or the Board of Directors, in accordance with the Law. Likewise, he may not be subject to civil precautionary measures of a personal nature or in his assets, for the actions that he executes in the exercise of his office and by mandate of the Assembly of Owners or the Board of Directors.

 

13. Article 109 of the Law stipulates that the justices of the peace shall have jurisdiction to hear and resolve situations or disputes arising within the horizontal property between the owners and/or between the owners and the administrator.

 

14. Article 111 of the Law stipulates that the actions against the decisions of the Assembly of Owners, Board of Directors and/or Administrator, prescribe in the period of three months, counted from their publication, delivery to the owners or their registration at the Public Registry, if applicable.

 

15. Article 115 of the Law establishes that the administration of the real estate units will inform monthly and in writing, to the mortgage creditor institutions and trusts, about the real estate units that are two months or more in arrears in the payment of their administration, conservation and maintenance of common property fees, and who will be under the obligation to receive the notification and act in accordance with the clauses of the mortgage contract.

 

16. The new percentages for the different situations:

  • Article 19 of the Law: The Assembly of Owners may approve by 51% or more of the totality of the real estate units, that some common property have exclusive character, under the conditions that they establish, for one or more owners, provided that they are not indispensable for the existence, security and conservation of the real property, in which case it will correspond to this owner or those owners benefited with the exclusive use of such common property the maintenance, repair and conservation expenses. In the previous Law 31 of June 18, 2010, it was established that the percentage was 66% of all real estate units.
  • Article 20 of the Law: The Assembly of Owners, in a decision taken by 51% or more of the totality of the real estate units, may approve the acquisition of a property offered by its owner, to be used as common property, for sale or lease for the benefit of the horizontal property. In the previous Law 31 of June 18, 2010, it was established that the percentage was 66% of the totality of the real estate units.
  • Article 22 of the Law: The coefficient of participation on the common property shall be proportional to the value of the real estate unit of its domain and must be fixed in terms of percentage of the total value. The improvements and impairments of each real estate unit do not alter the allocated quota, which may only be varied with the approval of 51% or more of the votes of the total number of real estate units. In the previous Law 31 of June 18, 2010, it was established that the percentage was 66% of the votes of the owners of all the real estate units as a minimum percentage.
  • Article 35 of Law 284: The modification of ordinary common expense fees or the approval of extraordinary common expense fees in first call will require the approval of the Assembly of Owners by means of a favorable vote of at least 51% of the totality of the real estate units that are up to date in the payment of the common expense fees. In the previous Law 31 of June 18, 2010, it was established that the approval of the Assembly of Owners had to be given by the favorable vote of at least 66% of the owners of the real estate units that are up to date in their financial obligations with the horizontal property. If the statutory quorum is not reached at the meeting of the Assembly of Owners on first call where the ordinary common expense fees or the approval of an extraordinary common expense fees is modified, the secretary of the Board of Directors or whoever is exercising this duty shall take the minutes recording the situation and any other relevant fact that must be known by the absent owners. Those present may set a new date for holding a new meeting, which must be called in accordance with the provisions of this law at least ten calendar days after the first meeting, with the same agenda, time, manner and place to deal with the modification of the ordinary common expense fees or the creation of an extraordinary common expense fees. In the second call, the approval of at least 30% of the totality of the real estate units that are up to date in the payment of the common expense fees will be sufficient. In the previous Law 31 of June 18, 2010, it was established that in the event that approval is not obtained due to non-attendance at the Assembly of Owners, the approval of at least 33% of the owners of the real estate units that are up to date in their financial obligations with the Horizontal Property will suffice in the second call.
  • Article 36 of the Law: In the case of additional improvements to those already existing at the time of incorporation of the horizontal property to the Horizontal Property System, the favorable vote of 51% of the totality of the real estate units that are up to date in the payment of the common expense fees will be required for their approval. In the previous Law 31 of June 18, 2010, it was established that the approval of 66% of the owners of the real estate units that are up to date in their financial obligations with the horizontal property will be required.

Icaza, González-Ruiz & Alemán wins ‘Panama firm of the year’ at Managing IP Americas Awards 2022

Icaza, González-Ruiz & Alemán has been named Panama’s Firm of the Year at the Managing IP Americas Awards 2022.

 

Now in its seventeenth edition, the Managing IP Awards celebrate remarkable Intellectual Property achievements by law firms and in-house teams in more than fifty jurisdictions.

 

The first installment of the Managing IP Awards 2022, focused on the Americas, took place on April 7 in New York where the achievements of the winning firms were recognized and celebrated.

 

Learn more about the awards and read the full list of winners by clicking on the following link: Managing IP Americas Awards 2022.

 

Administrators Obligations related to documents of the administration of a Horizontal Property

Ricardo CeballosBy: Ricardo Ceballos

According to numeral 23 of Article 93 of Law 284 of February 14, 2022 on the Horizontal Property Regime, the administrator of the Horizontal Property (P.H.) shall have the obligation to handover to the Board of Directors, once the contractual relationship has ended, all documents pertaining to the administration and those that have been placed under his custody by the latter, which may include Books of Minutes of the Board of Directors and Minutes of the Assembly of Owners, account statements, correspondence, documentation related to bank accounts, keys of the administration office and the property.  Furthermore, all those under its responsibility, for which a Minutes of Handover shall be taken and signed by the administrator and a representative of the Board of Directors.

 

From the above-mentioned, correspondence is very important documentation that must be handled with security, protecting it from distortion.  It is for this reason that we recommend that the Boards of Directors make use of personalized e-mail accounts for the P.H., as well as that all the equipment used for administration purposes be for their exclusive use. Likewise, a technological equipment shall be used to store all the documentation and keep a backup of the same, which should always remain under the control and supervision of the Board of Directors.

 

The same would apply for the licenses of the different softwares that are used for the same purposes and that require to be used by the administrator due to his functions, we recommend that those be of exclusive use of the P.H., as, for example, the software for accounting, as well as for any other application, with the objective of having a healthy administration.

 

To adapt an office in the premises of the P.H. would be ideal, so that all the work or functions of the administrator are carried out within the P.H., in this way the service provided would be more productive and at the same time all the documentation mentioned in numeral 23 of Article 93 would be protected, said documentation should be kept in these offices under the custody of the Board of Directors and the Administrator.

 

Taking into account the aforementioned suggestions, the Minutes of Handover would be more expeditious and safe, which would end with a process of the contractual relationship to the satisfaction of the parties, even so the drafting of a Minutes of Handover signed by the administrator and the representative of the P.H., would be the most recommendable, in order to evidence that all the documentation that rests in the offices of the P.H. Administration is mentioned in the Minutes and in this way to perfect in a complete way the handover of the administration to another administrator or to the Board of Directors.

 

Keep in mind that an administrator can be a natural or juridical person, therefore, in case of being a formal company according to the law, that is to say a juridical person, it is important to check that the person who acts in representation of the juridical person or company, is the proper or designated person, since it may be necessary that she/he sign certain documentation, among these, the initial contract to hire the administration service.

For assistance regarding Real Estate in Panama, contact us at consultas@icazalaw.com.

Icaza González-Ruiz & Alemán authors Panama’s chapter of Lexology Getting the Deal Through: Labour & Employment

Javier José Vallarino and Karen Tejeira co-author Lexology Getting the Deal Through: Labour & Employment 2021.

 

Lexology Getting The Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers. 

 

In its sixteenth edition, the Labour & Employment guide addresses key questions on all matters of concern regarding labour law in multiple countries worldwide. 

 

Javier and Karen’s contributions to Panama’s chapter of the guide provides local insights on a wide range of topics, including legislation, protected employee categories and enforcement agencies; worker representation; checks on applicants; terms of employment; rules on foreign workers; post-employment restrictive covenants; liability for acts of employees; taxation of employees; employee-created IP; data protection; business transfers; termination of employment; dispute resolution; and recent trends.

 

Javier José Vallarino is the partner in charge of the Labour Department at Icaza, González-Ruiz & Alemán and Karen Tejeira is an associate specialized in Labour Law. Their combined experience of over 25 years in their field allows them to provide comprehensive labour and social security advice to local and international companies operating in Panama.

 

To read Panama’s chapter on Lexology Getting The Deal Through Labour & Employment 2021, click here.

Panama creates Short Stay Visa for Remote Workers

Through Executive Decree No. 198 of May 7th, 2021, Panama creates the Short Stay Visa for Remote Workers.

 

Aiming to become a popular destination with digital nomads and professionals working remotely, Panama has launched its Short Stay Visa for Remote Workers.

 

This new visa allows foreign nationals employed by companies operating outside of Panama or who are self-employed, to live and work remotely from Panama for nine months with a one-time extension of nine additional months.

 

To be eligible for this visa, applicants must have a minimum annual income of US$36,000. In addition, they must prove that their income comes from a source outside of Panama through a bank certification or bank statements.

 

The requirements to apply for the visa include:

  1. Completed application form, which includes the commitment of the applicant to assume the costs to return to their home country or destination,
  2. Three passport photos,
  3. Certified passport copies,
  4. Criminal record certification,
  5. Good health certificate,
  6. Health insurance policy which must include coverage for the period of stay in Panama,
  7. Affidavit of personal background,
  8. Affidavit of non-acceptance of any work or service offer to carry out business in Panama,
  9. Certification of proof of registration of the foreign company where the applicant is employed,
  10. Letter of employment stating the position and functions exercised, monthly income, work modality, and commitment to assume the costs of return to their country of origin.

Self-employed applicants must prove ownership of a company registered outside of Panama and a sworn statement describing the business activity, services, clients, and revenue. All documents issued abroad must be apostilled or legalized.

 

The costs related to the issuance of this visa are:

  1. US$250.00 for the National Immigration Agency
  2. US$50.00 for the Visa Card

 

If you are currently working remotely, eligible according to the requirements, and you are looking for a new destination, take advantage of Panama’s great weather, fantastic beaches, mountains, culture, and, more importantly, world-class telecommunications infrastructure. Panama’s short-stay as remote worker visa could be exactly what you need.

 

For more information on this or other Visa categories, contact us at igranet@icazalaw.com or contact our lawyers to their email addresses below:

Ana Graciela Medina

Ana Graciela Medina

anagm@icazalaw.com

Ayleen Quintero

Ayleen Quintero

ayleenq@icazalaw.com

Podcast: Lessons from the first reporting period of Economic Substance in the BVI

Icaza, González-Ruiz & Alemán has launched its Legal Insider podcast

 

Legal Insider is a podcast by Icaza, González-Ruiz & Alemán, in which our team of experts will decode essential information on jurisdictional regulatory updates, provide insights into the policies and services that are shaping our industry, and detail their implications in your business.  

 

In our first episode, Liz Barahona, Deputy Manager of Icaza (BVI) Trust Limited, and newly appointed Chairwoman of the BVI Association of Registered Agents, Mariano Oteiza Jr., our Associate expert in Company Formation and Management services, and Domingo Diaz de la Guardia, our Associate in charge of the implementation of the Economic Substance system will be discussing the Lessons from First Reporting period of Economic Substance in the British Virgin Islands. 

 

 The main points discussed are the following:

  1. Economic Substance background and a brief recap of the Act’s requirements.
  2. Initial implementation Challenges.
  3. Reporting process implementation.
  4. Reporting and dealing with the COVID-19 pandemic: The short period provided to make the necessary filings in the BOSS system was made even more complicated by the pandemic. Due to global restrictions, directors were unable to travel to the BVI to hold their annual meetings, some companies ceased their operations temporarily, and overall the implementation of economic substance for companies was delayed. Local authorities allowed companies to indicate the difficulties they were having to implement economic substance and properly assess their situation on a case-by-case basis.
  5. Recommendations for the next reporting period:
    1. Directors must be fully engaged with the day to day operations of their entity,
    2. Directors must ensure that the entity is in good standing with all of its records updated,
    3. Registered agents must be informed of any changes to the company’s core income-generating activities,
    4. Changes to the financial period must be informed and registered,
    5. Organize the entities’ activities from the beginning of the year, such as annual meetings and other affairs.
    6. Start planning your filings early and request your filing confirmation.

Listen to Episode 1 here:

Join us at Expo Negocios Latinoamérica

Icaza, González-Ruiz & Alemán will be participating in Expo Negocios Latinoamérica

You are cordially invited to visit our virtual stand at Expo Negocios Latinoamérica, the virtual setting for doing business in Panama and the Latin American region, organized by the Chamber of Commerce, Industries and Agriculture of Panama (CCIAP) with the support of the Investment and Expots Promotion Agency of Panama (PROPANAMA).

 

To register free of charge, access the following link: https://comerciopanama.com 

Icaza, González-Ruiz & Alemán recognized in Chambers Global 2021

Chambers Global Guide 2021 Ranking

Icaza, González-Ruiz & Alemán has once again been ranked in the Chambers Global Guide, which ranks the top lawyers and law firms in over 200 jurisdictions across the world.
In this year’s edition, our attorneys ranked by the publication were the following:

The firm’s Banking and Finance, Corporate and M&A, Dispute Resolution, and Intellectual Property departments were also ranked by the publication.

 

We congratulate our lawyers and their teams on this achievement.

Icaza, González-Ruiz & Alemán ranked Gold band firm by WTR 1000 2021

Icaza, González-Ruiz & Alemán has been ranked for an eighth consecutive year in the World Trademark Review 1000. In the 2021 edition, the firm maintains its Gold Band ranking. The publication also highlights our Head of Intellectual Property, Gabriela Tejada de Britton, and Fernando González-Ruiz as leading individuals in the gold and silver bands, respectively. Moreover, Moisés Iván Rivera makes his debut in the publication this year, alongside Mariela De La Guardia Oteiza.

 

The publication provided the following review on the firm’s Intellectual Property team and its services:

“Respected by examiners, judges and customs agents alike, Icaza González-Ruiz & Alemán has all bases covered when it comes to trademark practice. The IP team, led by Gabriela Tejada De Britton, is well equipped to meet and exceed the needs and expectations of even the most exacting rights holders. De Britton is one of Panama’s most creative thinkers on brands and an engine of a prosecution unit which registers rights with striking efficiency. Expertise in anti-counterfeiting is another major selling point: Fernando González-Ruiz and Moises Ivan Rivera closely monitor the market and act decisively to eliminate fakes for high-profile players such as Hewlett Packard and Dreamworks Animation. González-Ruiz is distinguished by his enforcement versatility and is instructed by household names including Jaguar Land Rover and Swatch. “Rivera connects closely with clients, which enhances his strategic efficacy”; he acts for Unilever and Global Bank Corporation, among others. He makes his WTR 1000 debut this year alongside recently promoted partner Mariela De La Guardia Oteiza, who dispenses holistic advice on diverse branding problems.”

 

 

 

About WTR 1000

The WTR 1000 research directory focuses exclusively on trademark practices and practitioners and has firmly established itself as the definitive ‘go-to’ resource for those seeking world-class legal trademark expertise.  The WTR 1000  ranking shines a spotlight on the firms and individuals that are deemed outstanding in this critical area of practice. 

Liz Carolina Barahona appointed new Chairwoman of the BVI Association of Registered Agents

The British Virgin Islands Association of Registered Agents (ARA) has elected its new Council.

 

On Wednesday, January 27, 2021, Liz Carolina Barahona, Deputy Manager of Icaza, González-Ruiz & Alemán (BVI) Trust Limited was appointed by the British Virgin Islands Association of Registered Agents as its new Chairwoman. Liz had been appointed as Education Chair and council member for the past two years.

 

As she steps into this new role, we congratulate her and look forward to seeing her represent Icaza, González-Ruiz & Alemán (BVI) Trust Limited, while making important contributions to the industry.

 

 

About the BVI Association of Registered Agents

The BVI Association of Registered Agents is formed by companies that represent their sector to strengthen relations, form a unified front on issues and developments within the wider industry, and make recommendations to strengthen their offerings.