Uncertainty Over Whether Decree 398 of 2020 Applies: The Virtual Assembly Regime

#### The opinions of the Ministry of Commerce, Industry and Tourism and the Ministry of Housing, City and Territory.


By: José Miguel Toro Saldaña, attorney, Universidad del Rosario, specialist in Constitutional Law, Universidad Nacional de Colombia

Note: this article was published in August 2020, during the COVID-19 health emergency, and analyzes temporary rules (Decrees 398 and 579 of 2020) that are no longer in force; the content is kept here as a historical reference.

On August 4, we published an article on the blog called "Holding Assemblies in Condominium Communities During the Pandemic", which laid out the two lines of thinking on whether Decree 398 applies to virtual assemblies in condominium property (propiedad horizontal). This matters a great deal: if it applies, the "universality" requirement wouldn't be needed, and virtual ordinary meetings would be valid without meeting it; if it doesn't, those meetings would be ineffective.

That article invited academic debate on the issue and concluded that risk scenarios existed that would only be cleared up in court. What we didn't expect, however, was that the Ministry of Commerce and the Ministry of Housing, in issuing their own opinions — which, incidentally, are non-binding (art. 28 CPACA) — would take completely opposite positions on whether Decree 398 of 2020 applies.

Beyond the administrative difficulties this creates from a lack of coordination between authorities, and on top of increasing uncertainty for legal practitioners, some people simply treat the arguments and opinion that suit their own interests and circumstances as one more input: those arguing it doesn't apply defend and promote the Ministry of Commerce's opinion, while those arguing it does apply rely on the Ministry of Housing's.

The two opinions at issue are: filing No. 2-2020-021908 from the Ministry of Commerce's legal advisory office, and filing No. 2020EE0031451 from the Ministry of Housing's legal advisory office. In both cases the question asked was similar: whether Decree 398 applies to condominium property.

Starting from the premise that neither opinion is binding — and much less can they change the content of decrees, which are not only higher-ranking administrative acts but are presumed lawful — the Ministry of Commerce answered that it doesn't apply, since Decree 398 was set up for "remote meetings of partners' boards, general shareholders' assemblies, or boards of directors," overlooking the express text of its own article 3, which extends its application to "all legal entities, without exception." That opinion also addresses how to issue meeting notices and other points from Decree 579, but goes further, concluding that "remote assemblies in communities subject to the condominium property regime, without complying with article 44 (…), are ineffective."

For its part, the Ministry of Housing answered that Decree 579 established the remote-meeting regime for condominium property on a temporary basis between April 15 and June 30, 2020, expressly referring "not only to what article 42 of Law 675 of 2001 provides on remote meetings but also to what Decree 398 of March 13, 2020 regulates." It therefore holds that for the period when Decree 579's remote-meeting provisions were in force, "the provisions it establishes must be followed — in this case, condominium property law or, failing that, the rules adopted in Decree 398 of 2020, for whatever Law 675 of 2001 doesn't cover regarding how virtual or remote meetings are conducted."

Against this backdrop, the uncertainty continues, and we reiterate that it will be the courts that have to deal with the situation of uncertainty we currently face.

Our recommendation — seemingly easy to follow for small communities and hard for large ones — is that, despite the difficulties involved, the meeting be held with universality, meaning a deliberative quorum of 100% of the co-ownership coefficients. This significantly reduces risk in any eventual court challenge.

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