Pueblo & Fairways update.
Fairways update: Fairway owner asks question, Fairways response is……… Fairways won’t answer the questions. Fairways are in breach of part 18 request.
In the matter of elections/voting.
Some people scream at other and say: “what’s it got to do with you, keep your nose out, it’s between me and her/him” we have all heard this at some point in our lives. Well it’s factually right and in (timeshare) law it’s expressed as follows and in a principle.
The individual contract is private between the parties and the club have no voice in the contract.
Please keep this in mind at all times and apply it when required
There has to be an administration for the electing, proposing and voting in clubs that has to be fair in the best interest of the member, constitutional and compliant to good practises. Further, it has to be compatible to the tests of reasonableness and past authorities. (Common law applications)
In this matter the committee and controllers have to be very careful and anyone who is a member can scream unfair challenge at every aspect of the voting process. The club/committee and administrators responsibility is to show (to the consumer) the procedure is right and compliant. If you can see it’s wrong, you should be comforted that a learned man in a wig will do as well. Again it’s just a tactic they are operating.
That said the complaint and the allegation has to be raised within the statute of limitations i.e 6 years
In the case of Fairways
You cannot change the purpose in a constitution unless you have 100% of the vote.
It is irrelevance that the author of the constitution put a different figure (say 75%) in the constitution.
You cannot hold a dead man to a contract (perpetuity).
The contract is between the contracting parties. If you’re not a contracting party you have no voice.
The club is not a party – they have no voice in your contract.
The club could own the resort……….
You own the club……….
The club have been receiving timeshare back from disgruntled timeshare consumers.
Those timeshare weeks returned (in the main) are as a result of issues with club maintenance fees.
In exchange for not paying the maintenance fees your resorts have taken the timeshare back. Offer acceptance. A debt for a corresponding asset. Yes
Simple offer and acceptance!
The returned timeshare weeks are owned by the club. The remaining consumers own the club.
You the consumer have been paying elevated maintenance fees, why? Because there are less of you. You own the club and the timeshare weeks acquired by the club that have been given or moved elsewhere.
All the votes have gone with those weeks. Is that fair? Are you being duped out of the assets of the club? Where are the fractional interests going? Not in your pocket!!!
Some else has taken the timeshare week as they do not appear to register located it in its audited list of assets or liabilities.
Are you sure you at Fairway want to accept this?
If investigation and action is to be taken you need to form a group and challenge the matter in a group
Fairways in particular have to act as soon as possible.
This is due to the statue of limitations.
I will post an update and a suggested letter which will hold your position.
Please note I am being assisted by Judith and Liam. Each club member should be proud of the efforts of these two individuals, as they are testing the proposition of a past injustice.
One day you the consumer might be doffing your caps to these two.
So these were the questions and the pre position explanation:-
From: xxxxxxxxxxxxxxxxxxxxxxxxxxxx
Sent: 25 July 2014 16:55
To: Pueblo & Fairways Admin
Subject:
Good afternoon
My husband and I hold 1 week at the Elite Apartments at Fairways, Tenerife. It is yours, the committee and administrators responsibility to maintain the resort on behalf of the timeshare owners.
You will recall that your committee proposed to compel owners (such as me) to give up my fixed timeshare week in exchange for a floating week. You then convened a meeting to discuss with other owners and others your proposal and called a vote on these proposals. I note your proposal was passed in the AGM on 6 August 2008 and as a result of this being passed, you have relieved me of my timeshare and give me a different product, which I have never consented to, want or need. The first we knew of this was when we received a request to return our original certificate for changing to a new one. (We have since located all our original contract and documents which I understand have been destroyed by yourselves due to the timescale involved when we bought our Elite Apartment in 2000).
We would like to state we do not, and have not been in agreement with this being done and ask you to establish what had given your company the right to do what you have done.
The events and actions you have taken create a hostile environment and as such the continuance of my timeshare ownership is in a state of hostilities. Due to being in this position, and seeking to limit any adverse and costly action, I require you (the committee) to provide me with a full and particularised explanation as to your actions (having regard to your duty as a committee member and your fiduciary duty to each member of the resort club).
From this e-mail please note that I am acting as a “litigant in person” (LIP) and request you deal with me and me alone until such time as I express in writing a contrary position.
If you are unaware of the concept you should consult CPR rule 46.
If, in the future we decide to pursue any issues that involve court actions, you will note the courts overriding objective to deal with cases justly and at proportionate cost. Proportionate cost includes, (so far as is practical). –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
This is a part 18 request for information in accordance with CPR Rule 18.1 and is requested to save costs at this early stage should they become necessary.
Your response requires a statement of truth in line with part 22 PD
In order to reach a speedy result we require you, within 14 days, to provide the following information:-
Please explain in full the following:-
o Who proposed to the committee the need to take my fixed week timeshare and substitute it for a floating week?
o What date was the proposal received by the committee?
o Why the proposal was made?
o What was the purpose of the proposal?
o What advantage would it/has it brought to me (the consumer)?
o What advantage would it/ has it brought to the resort club?
o What advantage would it/has it brought to the proposed acquirer of my fixed timeshare?
o Who elected to recommend the proposal at the AGM/?
o What considerations where taken into account before the committee elected to recommend it?
o What was not considered by the committee when considering the proposal?
o By what rule or constitutional amendment permits the committee to consider taking this action on behalf of the club?
o Who did the committee appointed to deal with this affair?
o Please confirm the committee’s instructions to its appointed representative?
I require you to provide any and all documentation in support of the committee’s position on each and all questions raised in this matter and please note I may have to contact you in the near future to issue any further part 18 requests to confirm clarity and understanding.
I hope to hear from you within the next 14 days in order to avoid further correspondence with yourselves but in the event you do not answer my questions fully, again we will pursue these answers.
Yours faithfully,
The consumers
Now that is not hard to answer. It’s called listening to the consumer and giving him the respect they deserve.
The Responce from Fairways-Pueblo-Evita
On Monday, 28 July 2014, 9:47, Pueblo & Fairways Admin <enquiry@pueblo-evita.com> wrote:
Dear Mr and Mrs XXXXXXXXX
Further to your email of 25 July 2014, we would confirm the following.
As you are aware, Fairways Club is governed by the Constitution and all members upon purchasing have agreed to be bound by the terms and conditions of such. The Constitution states that any proposed change to such requires a three quarters majority of all votes cast at either an AGM or SGM (Special General Meeting).
In view of the above, the Resolutions proposed by the owner’s committee to change all remaining ownerships at Fairways Club to Floating Time were issued with the notice and agenda for the AGM held in August 2008. Enclosed with such was a proxy form allowing members who could not attend the meeting and vote in person to select either a personal representative, committee member or founder member to vote in their stead.
As confirmed above, in order to pass the Resolutions a three quarters majority of all votes cast were required as stipulated by the Constitution. As the required majority voted in favour of both Resolutions, these were passed and therefore came into effect immediately.
The only difference between ‘fixed’ and ‘floating’ time is that under the floating time system ownerships are recognised by apartment type and colour bands of the week or weeks owned, rather than a specific apartment number for a specific week. Floating time does not affect your rights of ownership and does not affect your trading power with RCI. We note that almost every year you deposit your week with RCI for exchange.
With floating time Members request an allocation each year. The allocation confirms the apartment number and week assigned to the Member for use either at the resort or for banking with RCI. When banking a week with RCI the main points related to your ‘trading power’ of the banked week is the time in advance the week is banked and the exchange requested. Therefore when banking with RCI the apartment location is irrelevant.
Your questions below are covered by the minutes attached
We trust that the above is all in order; should you require any further information or assistance please do not hesitate to contact us.
Yours sincerely
Susan Shaw
Fairways Club
This is well worded response by the resort as they have spectacularly managed to not answer a single question asked by the trusty consumer.
So what’s our advice?
Ask again! Tell the responder to stop being silly and answer the questions, point out they have a duty to do so.
Then
Ask again if they ignore you, point out it’s a legal requirement and that they should consult a senior person.
Be nice as every time they refuse to answer a reasonable question from a reasonable consumer it provides a corresponding nail it the coffin to any case going forward.
So play their game, be humble, gather your nails and when you think you have enough, drive them in.
In timeshare situations, if you are met with ignorance fight with kindness.
That all said in Fairways you have to keep your eye on the clock as the statues of limitations is looming.
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk