When an organisation sets itself out as the self appointed representative of the European timeshare industry one has to make the assumption that the information they impart is both factual and correct, in reality, nothing less would be acceptable. The RDO (Resort Development Organisation) website is full of information promoting not only the purchase of timeshare and its associated products but also the continued ownership of timeshare throughout Europe. Given the strength and adoption of law 42/1998 in Spain, we find it difficult to understand why the RDO fail to offer accurate advice for owners who have, over the years been sold illegal Spanish timeshare contracts.
Spanish Law 42/1998
Much has been published relating to this law including on this site suffice to say this law has been accepted by the Spanish courts and acted upon, as of course it had to be. Given that this law afforded previously unavailable levels of consumer protection and exposed timeshare developers who failed to act within the law, is it any surprise that throughout Spain and her islands there have been literally hundreds of legal court challenges that have been upheld with the result that timeshare contracts have been squashed and court orders put in place to refund all purchase costs. These are irrefutable facts.
What does the RDO say about this?
According to the RDO website they appear to be in denial. Although they acknowledge the existence of Law 42/1998 they still appear to be promoting the idea that either the law is wrong or has been totally misinterpreted by both Spanish lawyers and the Spanish courts. From the very first upheld case presented to the courts in 2015 right up until today, thousands of cases presented have been and are being won with illegal contracts being cancelled and financial recompense ordered.
From this we can only conclude that the legal system and those who work within it are in accord. With this in mind, how can the RDO publish the following on their website?
“In 2015, the Supreme Court chose a new interpretation of the law and deemed one contract void. This new interpretation is under review but for the time being it is being followed by the lower courts. In addition, you should note that this interpretation only applies to contracts that are governed by Spanish law and signed between 5th January 1999 and 6th July 2012”.
Given that it is fair to say that Jurisprudence took place in relation to the first cases and the literal translation of a complicated law was simplified for all in the legal profession to understand and work to, we fail to see why the RDO would imply that a “new interpretation is under review”, this begs the question, who is putting a “new interpretation” forward, and to who?
Later in the same article the RDO go on to explain some of the potential of pitfalls of going down the legal route, unfortunately the reasoning cannot be said to be entirely factual. Below we reproduce the section referred to with appropriate clarification:
- Claimants will have to pay their own legal fees – often upfront. If the claimant loses the case, the legal fees paid by them are irrecoverable and the Claimant will generally be ordered to pay the Developer’s legal costs.
If successful, the lawyer will often want a share of any monies recovered which can be as much as 30% - Most legal firms either work on a full fee basis or a co funded option not a mixture of both. In our experience there has never been a case where costs have been awarded to the developer.
- Claimants will need to attend court hearings in Spain and will incur flight and accommodation costs
- Untrue. A simple notarised and apostilled power of attorney in favour of the Spanish law firm will alleviate the need to attend court. However, should a plaintiff like to attend court this is perfectly acceptable.
- Claimants’ costs may increase if proceedings are drawn out, decisions appealed etc
- Unlikely. In most cases the legal fees calculated at the outset will cover all costs.
- If the Claimant wins, they may still be ordered to pay the developer a fair market price for the holidays they have taken in the resort over the years
- False. If a contract is deemed null and void by the courts there can be no right to reply, the judgement effectively states the contract should never have existed and as such the defendant has no right to further payment
Scam Companies
Here we agree with the RDO. Our research indicates that the majority of cold call companies are indeed scam operators and should be avoided at all cost. We continually labour the point that your own research and due diligence is of paramount importance. Fraud in all walks of life is rife and unfortunately timeshare is no exception. No matter how good the story, do your homework before engaging the services of any company that may make contact with you.
Legal claims for Spanish timeshare purchases are real and are happening as we write. Not every Spanish timeshare contract is illegal so just because you have one it is not automatic that you will have a claim, this is where expert assistance is required.
At this juncture it may be useful to take a quick look at contract law. If both parties are in agreement to terminate a contractual liability and the termination is carried out correctly then that’s it, contract over. With timeshare the rules are the same. Once a contract is legally terminated then neither party has the right to challenge the contract further. Once again the RDO quote the following:
“First, contact your resort. If you are looking to dispose of your timeshare, you might be able to do so through the resort’s own exit programme, particularly if it’s a member of the industry trade body, RDO (Resort Development Organisation). There is no need to pay a fee to a claims company to do this”.
Good advice? In essence what the RDO say is factually true, in many cases there is no need to engage specialist services to exit a timeshare, though this also cannot be guaranteed. Handling a claim though is an entirely different ball game. Before we investigate that point further it is worth pointing out that the resorts and developers who have been consistently guilty of issuing illegal Spanish contracts would be delighted if you contact them to exit your ownership, why? Because referring to the law of contract, the termination would cancel any previous rights you may have had to challenge the legality of the contract, thus you have let the resort or developer off the hook. Remember, the RDO must demonstrate member loyalty and the prospect of saving the resort or developer thousands of pounds in legal costs the RDO suggest that you contact the resort directly, who of course will cancel your ownership forthwith whilst rubbing their hands with glee, bit underhanded advice we think.
Foreign country, foreign language, foreign law
Just from the heading of this section it must be concluded that presenting a court claim on a do it yourself basis is simply not an option. Naturally having a full understanding of local law and a native proficiency in the language are absolute essentials for any chance of success. Lawyers globally have specialist areas of skills; you wouldn’t consult a Conveyancing expert with a wills trust and probate problem, would you? The same applies in Spain. A specialist timeshare lawyer is a must. They will be able to look at your ownership and accurately evaluate the validity or otherwise of a claim. As we stated earlier, just because you own a Spanish timeshare does not automatically qualify you for a claim.
How long is a Spanish piece of string?
As with any court case things can get a little protracted. The reality is that taking a case to the Spanish courts can be a long drawn out process; in fact 18months to 2 years would be a conservative estimate. We covered the exact process in an earlier article which may be viewed here. From our experience, all legitimate law firms, make the time expectation very clear, so once again we find the RDO (Resort Development Organisation) comment below quite perplexing:
“The reality is that law firms are not telling their clients that the legal process is lengthy and time consuming.”
Given that many people will understand that court cases may be protracted affairs, wherever they are actioned, if the case is presented with the full power of the law on its side and a potential successful outcome may be expected, then surely it’s worth the wait.
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