Communiqué 11, Position Before Legal Framework

April 06, 2019 – Position Before Legal Framework –
Dear Colonos,

As you have seen in our communications, we have tried to be very clear and direct, but also political and conciliatory with our position towards the Fideicomiso / Banco Santander SA de CV.

To date we have refrained from making direct responses to any communication from the developer.

However, due to the seriousness of the matter, we are forced to answer to Post # 57 of the Blog of the Trust / Banco Santander SA de CV.

In that regard we clarify the following:

  • The lawyer signing this communication is the son of Héctor Pavón, the current legal representative of the Fideicomiso / Banco Santander SA de CV
  • This is an opinion and legal interpretation of the same Fideicomiso / Banco Santander SA de CV towards itself. They are trying to be judge and jury, which is not allowed by law
  • We are struck by the fact that finally, for the first time, in a written communication, they admit that we are a Public Fraccionamiento, which we Colonos has stated for a long time
  • As well for the first time, the Developer admits that legally, the Puerto Aventuras development has to be handed over to the Municipio/Ayuntamiento, but that it is the sole responsibility of the Fideicomiso / Banco Santander SA de CV to do so
  • We recognize as the letter states, that we operate under an Operation Agreement between – Colonos – Municipio/Ayuntamiento, Fideicomiso / Banco Santander SA de CV with great economic benefits for Municipio/Ayuntamiento, as Colonos pays, with the money of all the neighbors, the maintenance of the complex. These costs would be the responsibility of the Municipio/Ayuntamiento if such agreement did not exist, and in the strict legal sense, it would be the responsibility of the developer to pay for those expenses, while not handing over the finished develpment to the Municipio/Ayuntamiento

What this communication does not say, which is fundamental to the proper understanding of the position of Colonos and to really know where we stand legally is:

  • Colonos under no circumstances wants to change the type of relationship we have with the Municipio/Ayuntamiento (government)
  • Colonos under no circumstances intends to transfer its and maintenance and operation responsibilities to the Ayuntamiento/Municipio, as this would have any benefit for anyone.
  • The Ayuntamiento/Municipio has not expressed any interest in assuming the costs and responsibilities that the Colonos have been assuming for over 20 years
  • The only intention that Colonos has with the Ayuntamiento/Municipiol is to sign as soon as possible the operational agreement
  • The responsibility and delivery process of the complex to the Ayuntamiento/Municipio lays soely in the part of the developer
  • These operating agreements between Colonos and the Government are very beneficial to the Ayuntamiento/Municipio and are very common throughout Quintana Roo and Yucatan. The Ayuntamiento/Municipio collects property taxes but does not use its resources or assumes the internal operation responsibilities
  • 99.9% of these Operational Agreements are directly between Colonos Associations and the Ayuntamiento/Municipio, without the figure of a developer existing
  • It is not necessary or mandatory that the developer be part of these agreements and the figure of the developer is not needed to achieve them
  • The Fideicomiso / Banco Santander SA de CV has the legal obligation to complete the development and make a formal delivery to Urban Development and Ayuntamiento/Municipio

There is a direct, negative impact to the patrimonies and economic interests of the Homeowners/Colonos, if the Developer does not deliver the complex as required by law, for the following reasons:

  • The developer can continue modifying the Development Master Plan (without the consent of the Homeowners who are the majority)
  • The developer can continue adding and selling additional properties and modifying (this is called fraud) or eliminating common areas that have already been assigned as such in the master plan and belong to all Colonos
  • The developer can continue  converting these Common Areas into more houses or commercial areas for their own benefit in their desire to continue generating profits
  • The example of Central Park is a perfect illustration. The developer prefers a dog park and 87 new lots to sell, instead of the Golf Course that was approved and promised in the original Master Plan. For the Homeowners/Colonos, the change represents a loss of around US $100,000 in value on average per house in Blvd Pto. Aventuras. Having bought a project with a 18 hole golf course, now they are told they will have a dog park. It is obvious that the original project has more value for all Homeowners/Colonos, besides the fact that having a golf course was embodied in the initial project or master plan.
  • Each time the density of the master plan increases, our quality of life and therefore our assets decrease
  • A new building could appear in what is currently the 9th golf hole, and we all would continue to be affected
  • Not delivering the project to the Ayuntamiento/Municipio by the developer, allows him to continue committing abuses of power, as demonstrated by the violent take over of the main gate and the blocking of the second Colonos’ entrance and saying something as absurd as that the streets and federal property facing the road are his. How are the streets that we paid for and continue to maintain, be someone else’s property?
  • For the Homeowners/Colonos, our autonomy is key and the benefits of achieving it, is far greater than the risks, and we are not only considering our economic benefit, but our security, and the ability to control our realities, our community and have the peace of mind and the quality of life to which we aspire.

Finally, we ask you again for your confidence and your support.

The admissions of post # 57 and the discussion that is currently taking place, is a clear example of what we have achieved as an Association, and shows that the proper steps are being taken to ensure that we as Homeowners/Colonos are protected.

At the Ayuntamiento/Municipio (government) level, it seems that the change in government mentality and the values ​​they represent, will not continue to allow the abuse of power and complicity, which together with money and ambition of the developer, has allowed him to act at his whim, always putting their economic interests above ours.

We Colonos are the majority, and it is with the money of Colonos that our complex has been maintained and improved. Therefore, we have the right to decide.

We are on the right track and we continue working.

SINCERELY,
The Board of Directors

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