Are you entitled to rely upon the Provision 1.4 of Law 42/1998 which prohibits the denomination of those rights as “multi-ownership” or any other way containing the word “ownership”, “owner” or “property”?
Yes you are!
Firstly let me explain;
The EU is made up of various nations, each operating their own distinct legal systems. Each is entitled to view the regulation proposals which flow from membership of the EU, discus them and either adopt them fully or morph them to suit their own beliefs and customs. Of course the main embodiment of the regulation will be sacrosanct.
We have to appreciate that the Spanish legal system is different to that of the UK. The UK may take its own position on what is right and just but equally so can the Spanish.
Many welcome the provision noted above and as they benefit from them, fully embrace and align themselves to them. That said the RDO take a different position as it is their members who suffer from the implementation of the law. Looking at the conundrum from their member position and girdling the consequences of the implementation one can see that they would object. From a UK legal prospective they, in my opinion, are right to be dancing and thrashing the sword of injustice as I do believe that if this matter was before the UK Courts they may have taken a different approach.
That does not suggest that the provision is wrong, unjust or reckless, it means that it is compatible to the customs, practices and laws of Spain as seen in the eyes of their legal system. Where ever there is an action there is an equal and opposite re-action.
Clearly consumers love it and the industry hates it. That opposing reaction does not detract from its present lawfulness. I caveat that as the RDO are considering a legal challenge in the European Courts and if successful, the judgement may be overturned.
The present position therefore is thus;
- Any sales contract detailing the rights of a person to use a particular property, during a specifiable period during the year in Spain is covered under Law 42/1998.
“Timeshare rights are those which give to the holder the right to use and enjoy an independent dwelling, with exclusive character, for a specific period of time within the year. It includes the necessary furniture for this use and any complementary series and facilities. It is regulated in Spain by a Law date 1998”.
- The consumer/owner of timeshare rights never acquires any ownership rights, only a right to use the property for a specific period of time only.
- The duration of these rights is not indefinite and should always be between 3-50 years.
- Outright ownership of the property remains the developers.
Because the developer retains ownership, they retain the right to sell ownership rights with limitations derived from the existence of the other persons use and enjoyment rights on the sold unit, which will remain for the contracted period.
This said, Provision 1.4 of Law 42/1998 prohibited the defining of those rights as “multi-ownership” or any other statement inference or word suggesting “ownership”, “owner” or “property”.
Therefore, Any contract signed in Spain containing the word “ownership” or “property” is null and void and British consumers have the right to claim a refund of any money paid, plus lawful interest.
In Spain appropriate, descriptive and loyal Law is “derecho de aprovechamiento por turno”, which means “right to use and enjoyment in shifts”.
The same structure can be subject, at times, to different tourist operations, provided the rights of timeshare accommodations fall on concrete and specific periods and units.
The annual use/enjoyment period can never be less than 7 continuous days.
Main characteristics of timeshare rights in Spain are;
- It is a limited ownership right (enjoyment): two or more different people hold rights on the dame property (the owners and the holders of enjoyment rights).
- It is immediate, as, in shifts, it gives to its holder a direct enjoyment of the property.
- It is interested in the Land Registry, which gives to its holder a complete legal safety within the Spanish legal system. Obviously timeshare rights need to be transmitted by notary deeds for their entry into the Land Registry.
- It can be transmitted to others either in life or by death. They are party of the property trade.
Together with desisting from or cancelling the timeshare contract, possibilities that are subject to a shorter deadline, there is a possibility, initially sine die (without deadline) to apply for the nullity of the contract.
In what cases?
- When timeshare rights are transmitted disregarding the imperative Law which regulates them
- When the transmission of timeshare rights are made before the scheme is actually constituted
- When there is a lack of veracity of information provided to the buyer.
The action for the refund of amounts linked to the nullity has a 15 year deadline. (end date 2014).
As the matter has been appealed and is now the subject of a supreme court ruling that end date will shift.
The important issue of adaptation
From January 1999 any pre-existing timeshare regime needs to adapt to this Law. If this has not happened, any holder of timeshare rights will be able to request a Judge to force the developer to do so.
Adaptation will respect the nature of rights which were transmitted by virtue of the old private contract. If ownership was transmitted, this is how it will have to be registered after approval of a simple majority of Community of owners.
All old contracts will have a time limit of 50 years unless partied have agreed otherwise or parties mutually or freely agree in the adaptation deed on a different definitive or non definitive period.
If the owner of the development does not comply with the obligation of adapting the regime to this new regulation, the holder of timeshare rights will have rights to cancel the contract with effective devolution of amounts and compensation of damages.
It is therefore fully applicable to all timeshare contracts which predate the 5th of January 1999.
To overcome doubt a consumer can seek from the resort an answer to a question. They are obliged to answer your question and if they don’t and choose to ignore your question they may well be responsible for your costs in any event and the court will view the refusal to reply disproportionate and unreasonable behaviour.
In fixed week timeshare contracts consumer have a need to understand that they have signed multiple contracts;
- The sales contracts (this contract is the main contravention of Law 42/1998)
- A membership contract (which binds you to a club which imparts on you the maintenance fees)
- A trust agreement.
If the sales contract flounders, your membership will become frustrated.
If you exit your club, you still have rights to pursue the seller for the miss-selling
If it is now within your knowledge that you were miss sold, and financed assisted you in completing the purchase and that finance is linked to the seller you can pursue the lender.
On that point the sale has to be over £100.00 and below £30,000.
Consumer who acquired there timeshare pre 1999 now have a need to consider the above and consider if they wish to take an action against the seller.
Before you act think!
Firstly;
It is your right to claim off the seller but do they still exist? If you pursue an action for the recovery of your money the seller will attempt to resists your claim and cause you frustration. You may wish to exchange your quite enjoyment of knowing you are out and free of the commitment in exchange for a compensation claim.
If you do feel aggrieved and wish to seek compensation many firms and legal enterprises are well versed at obtaining that compensation and/or in assisting you. That said they will charge you as they are performing a service for you.
The charges are very competitive at the moment so don’t sign anything, don’t commit to any commission until you have considered matters fully. If you are invited to a presentation there is no need to go to one as pressure may be placed on you to go with them and them alone. Presentations and salesmen cost money. If you attend one and sign up with them, you will be paying for the selling, the advertising and the other costs incurred by them for the many abortive presentations.
If at all possible pay a fixed fee for the exit and a no win no fee on the compensation claim.
In the event that you wish to relinquish you membership of the club you can do so but retain your deeds and do not wave away your right to claim.
Resorts on many occasions demand the deed. This is done so that you do not claim from them. Don’t let that deed go, keep hold of it and your sales contract. When a resort relinquishes your membership, that membership is particular to the club and the deed you have is of no real significance to the club other than protecting the original seller who on many occasions, is linked to the club by some corporate mechanism.
Don’t be tricked out of anything, consult and consider everything.
The Time Timeshare Consumer Association is a not for profit organisation. It has extensive costs in supporting timeshare Consumers and as such, we rely upon the generosity of individuals, communities and businesses so as to provide a continuation of the free services that we offer.
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