Termination Notice
Mr and Mrs xxxx
Address…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
V
Club (2nd Party)
xxxx
Address………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………..
Dated the 1/07/2015
Take note the 1st party is identified to the 2nd party by the membership no. Xxxxxxx and all matters that flow from this notice are specific to that membership and the obligations, and benefits therein, including but not limited to the constitutional rules and regulations which binds the parties to each other.
Take Note:-
I resign my membership from the club forthwith. In doing so, I reserve at all material times my right to action a claim for damages/compensation – by way of any forum I deem appropriate and/or from you, the seller or any other person named or unidentified, and as a result of any misrepresentations, breaches of contract, tortuous interferences, and/or frustrations. To avoid any doubt this resignation does not intend to negate or affect any rights I currently enjoy.
My resignation is as a result of the following and is irrevocable and final.
I reserve at all material times the right to show this termination notice to a court if and when appropriate to do so.
Legal issues
Following two recent decisions by the Spanish Supreme Court, the membership in the club has been frustrated.
A supervening event occurred, namely the recognition by the Spanish Supreme Court, that the timeshare contract I entered into and which gives meaning to (and justification for) the maintenance contract is unlawful. In these altered circumstances, it would plainly be unjust to require me to continue to pay maintenance fees and retain membership of the club.
Typically, fixed week or floating week timeshares and the selling of them are governed by the Spanish law. Spain, therefore has Jurisdiction and the Supreme Court has ruled in the cases of Maria Rosa -v- Anfi Sales SL) and (Eusebio & Antonieta -v- Banco Guipuzcoano SA). The Court held that both agreements were void ab initio. In the Maria Rosa case, this was because the terms of her agreement were contrary to provisions under Spanish National Legislation Law 42/98 – specifically, because the term of her agreement was not limited to a maximum duration of 50 years. In the Eusebio case, the agreement was held to be void because it failed to specify the particular property comprising the subject of the agreement (again contrary to Law 42/98).
My contract mirrors those issues and therefore is also void and contrary to Spanish National Legislation Law 42/98.
An obligation therefore, to pay ongoing maintenance fees and towards the upkeep of the Spanish property is in law frustrated. English law establishes a contract may be discharged under the so-named doctrine of frustration, the doctrine has been formulated in the following terms:
“Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance…”[1]
Equitable Estoppel
This legal principle protects one party from being harmed by another party’s voluntary conduct. Voluntary conduct may be an action, silence, acquiescence or concealment of material facts. The club knew or ought to have known that the sales contract was authored in contravention of the Spanish National Legislation Law 42/98.
Note:-
In the event you challenge this notice you are required to give full and detailed particularisation of your reasons. Failure to do so will invite a stay in any forward action.
Print Full Name (in black ink)…………………………………………………………………………………………
Signed………………………………………………………………………………………………………………………….
Dated…………………………………………………………………………………………………………………………..
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