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In the developed world we can mostly be proud of the legal systems in place. Where there is any element of doubt the accused has the right to appeal the sentence of the court. This fundamental right is sacrosanct and is a pillar of justice for the protection of the innocent but when this right is abused and used to delay the inevitable it is both costly and futile.

In Spain timeshare purchase and ownership changed dramatically with the introduction of Law 42/98 on the 5thJanuary 1999. This law made it extremely clear as to contract terms that were both legal and illegal; the problem is that the timeshare industry, in general, chose to ignore this law. The most significant points of the legislation may be viewed here.

Interpretation

As with any legislation initially there may be differing interpretations, for some reason laws are always written in such a way that the average individual will not understand, this is where jurisprudence comes in. 

Basically, jurisprudence focuses on finding the answer to such abstract questions as “What is the law?” and “How do judges (properly) decide cases?” in other words it simplifies the complex written law by interpreting the meaning which assists all those involved to have a full understanding of the true implication and ramifications of the law in an attempt to avoid ambiguity.

Law 42/98

Naturally when this then new law was enacted some decided to place their own interpretation as to the content, given jurisprudence took place the main points of the law were simplified and clarified in such a way that all could understand, but for some reason many timeshare groups and resorts chose to either ignore, or work to their own interpretation.

When looking at the main simplified points of the law that make certain purchase contracts illegal, we would ask what is unclear or ambiguous about the following?

  • The contract term must not exceed 50 years.
  • The contract must contain the exact details of what was purchased which excluded floating weeks, points or fractional ownerships.
  • No monies must be taken within the stipulated cooling off period
  • Buyers must be given a comprehensive list of information – failure to do this extends the cooling-off period by three months. 

Despite this clarity, the industry went on for many years binding their clients into illegal contracts in total defiance of the law.

Spanish court interpretation

The lower Courts accept the points above and will pass judgement accordingly as to the illegality of those timeshare contracts where there is clearly a breach of Law 42/98. Sentencing is then passed which demands the cancellation of the timeshare contract, full reimbursement of purchase costs and the application of legal interest, plus in many cases costs. Unfortunately, this is where the appeals process kicks in.

The appeal

Despite being cut and dried, very few timeshare groups or resorts accept the ruling judgement given by the lower courts, thus starts the drawn out appeals process. We have already established that it is the legal right of the accused to appeal but given the clarity of Law 42/98, the ultimate decision will lay with the Supreme Court who in general will uphold the judgement.

This process will extend what should have been a simple case into a long winded series of court presentations ultimately taking up to two years or more to conclude, however in nearly all cases the decision will be “guilty” and restitution will be ordered. 

Jurisdiction

Certain timeshare groups also present evidence to the courts, in an attempt to bypass Spanish Law, by confirmation that their contracts fall under the jurisdiction of UK law and UK courts. The companies concerned have legal registered entities in Spain, where the contracts were implemented, and as such these presentations have systematically been rejected by the Spanish courts. A legal company in Spain retailing a Spanish product will be adjudged by Spanish law, despite contract terms to the contrary.

Even the European timeshare trade body, being the Resort Development Organisation (RDO), confirms this fact in its code of conduct which states:

Part I, Chapter 3, Paragraph 3.5:

“To comply with all laws, which apply to Member’s, business in the jurisdiction in which the Member operates.”

Yet groups such as Diamond, Anfi and Club la Costa, all RDO members, still raise and fail on appeal where jurisdiction is stated as a defence.

Conclusion

Despite all the appeals and delaying tactics used by timeshare companies and their resorts both truth and justice will ultimately win the day. Yes it may be an uphill battle but as a timeshare owner, you can rest in the knowledge that you can have your day in court, win your case and be awarded the appropriate compensation putting to rights the wrongs that have been perpetrated.

Needless to say, legal action in Spain is not a “do it yourself” option, expert legal advice and representation is essential. Of course there will be costs involved with a certainty that certain fees will need to be paid in advance but upon a successful judgement the recompense will far outweigh the expenditure.

Please be aware there are a considerable number of rogue traders purporting to be legitimate claims companies. Please carry out your own due diligence and homework before engaging the services or paying any monies to companies. In general whilst regulated UK law firms cannot be criticised and are certainly experts in their field, Spanish court claims can only be successfully prosecuted by registered Spanish Lawyers and it is with certainty that respectable UK lawyers would not wish to engage in such cases due to the lack of expertise. 

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