Anfi Beach. Recent rulings in favor of Consumers

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Offline jcorrea-lawyer

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Anfi Beach. Recent rulings in favor of Consumers
« on: April 10, 2013, 16:34:21 »
I recently had the opportunity to know about several judgments, namely five, ruled by the Court of First Instance number THREE, of San Bartolome de Tirajana, in which his lordship, Judge Mr. Armando Garcia Castellano, changing his approach so far, declared null and void the contracts signed at the time by my clients -I acted in these trials in substitution of my colleague Miguel Rodríguez- with Anfi Sales SL and Anfi Resorts, SL.  The nullity is based on lack of object of the famous and so called "floating system". Indeed in Ordinary Proceeding numbers 942/2011, 1010/2011, 1215/2011, 1308/2011 and 1388/2011 the decision was the same: the contracts signed are null and void and the defendants have to return the money received plus interest from the filing of the demand.

It is in its THIRD Legal Ground where his lordship analyzed in depth these contracts that sells "floating weeks" in "floating suites" as he believes that they are contrary to Article 9.1.3. of Law 42/98. He thinks so because the contract does not specify the specific week, object of the contract, indicating the days and times that starts and ends as required by that article. Such failure is not a mere lack of information, it implies a lack of determination and realization of the object of the contract, which is clearly contrary to Article 1261 of the Civil Code. He also highlights the difficulties experienced by consumers in order to know when they can enjoy their purchased weeks. They must first go to clause eight of the Terms and Conditions of the contract and subsequently to Annex E. Finally it turns out that the week and the suite are always subject to "availability", which means that the execution of the contract is at the discretion of only one the contracting parties, in this case Anfi, and therefore there is not a true object. For these two final reasons the judge has declared null and void the contracts, having the defendants the obligation to reimburse the sums paid as the purchase price of the floating weeks.

It is equally true that, so far, this same court had ruled, on multiple occasions, against customers who wanted to terminate their contracts, so this change of position, along with the recent judgments of the Audiencia Provincial (Court of Appeal) of Las Palmas, is to be welcomed.
« Last Edit: April 10, 2013, 16:42:18 by jcorrea-lawyer »
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Offline Carolinian

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Re: Anfi Beach. Recent rulings in favor of Consumers
« Reply #1 on: April 10, 2013, 19:37:00 »
It seems like this legal argument, if it is sustained in higher courts, will potentially open the door to anyone with floating weeks, and probably points as well, to get out of their contract.  The developers may have outsmarted themselves by creating these beasts.
 

Offline jcorrea-lawyer

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Re: Anfi Beach. Recent rulings in favor of Consumers
« Reply #2 on: April 11, 2013, 10:24:54 »
I hope so Carolinian. This is something (lack of object in floating contracts) in which I have insisted in each demand against Anfi. When you sell floating as Anfi does, what you are really selling is an “expectation”, you are not selling a specific week in a specific apartment, but the possible use (and this is the trick) of a week when you want along the year. The problem comes when the client wants to book the week, that is subject to availability –see the famous Annex E supplied with the extra and numerous documentation that nobody reads-. Then that week that the client seeks has been already booked and you have to try other dates and change if needed your own vacations. At the end you get what Anfi wants to give you, so the execution of the contracts lie in the hands of one of the contracting parties, Anfi, which is against article 1251 of the Civil Code. And this is even worse when clients realize, as many have done, that this problem –lack of availability- comes for the fact that Anfi is selling those weeks to tour-operators, non-members of the Club, for approximately the same price as the Maintenance quota. This is against article 1.2 of Law 42/98 and 23.2 of Law 4/12. Moreover if it is a Club it should be prohibited nonmembers entrance as the very nature of a Club is to be just for its members, not for everybody.
Bringing legal advice on Timeshare matters throughout Spain.
Lawyer nº 1071 of the Las Palmas Bar Association. Canary Islands.
http://www.correaguimera.com [nofollow]

anonymous99

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Re: Anfi Beach. Recent rulings in favor of Consumers
« Reply #3 on: April 11, 2013, 13:24:48 »
Excellent news and congratulations on the court victory very well done it is so good to hear of this many thanks

Offline charlie1

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Re: Anfi Beach. Recent rulings in favor of Consumers
« Reply #4 on: April 12, 2013, 13:38:13 »
Fixed weeks has always been the way to retain control that's your time

The trading value is known with no real surprises with the exception of RCI Weeks members as the trading value will fluctuate according to supply and demand and when you deposit your RCI Week.
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Offline Carolinian

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Re: Anfi Beach. Recent rulings in favor of Consumers
« Reply #5 on: April 12, 2013, 14:44:06 »
Fixed weeks has always been the way to retain control that's your time

The trading value is known with no real surprises with the exception of RCI Weeks members as the trading value will fluctuate according to supply and demand and when you deposit your RCI Week.

Of course, with RCI, trading power can also fluctuate in a big way with RCI putting its thumb on the scale, either for your resort / area or against it, which is one of the reasons I say away from RCI.  One of the areas where they are shortchanging members of trading power is the UK.

Fixed weeks are indeed the best way to go, as that way developers cannot play games with what you get, as Anfi seems to be doing, and many other floating weeks or points developers do, as well.
 

Norrie1981

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Re: Anfi Beach. Recent rulings in favor of Consumers
« Reply #6 on: September 26, 2013, 18:27:55 »
Jcorrea-My wife and I purchased a floating week from ANFI back in 2010 after they filled our heads full of alcohol until we gave in. Anyway moving on we are now having our 3rd child, wife no longer in employment and have been trying to find a way to sell up and get rid of the debt since end of last year. Problem is floating weeks are worth nothing on resale and we still have 2 years of finance payments direct to ANFI (not Barclays as some others) tried twice in our first year to book for the peak holiday times(well in advance) and could not get a booking!!! Since then money has been tight and also we could not take our eldest child out of school for off peak periods to holiday at ANFI for fear of action on us from her school etc. and off peak would only give us the best chance of actually getting a week.

Anyway I realise you are a business man and would need something for your time and advice so appreciate that if you feel there is anything you could do for us with a positive out come for us and yourself then please do not hessitate to get in touch,


Thanks

Bryan

Offline jcorrea-lawyer

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Re: Anfi Beach. Recent rulings in favor of Consumers
« Reply #7 on: October 01, 2013, 09:14:36 »
Thank you Brian, I have sent you PM.
Bringing legal advice on Timeshare matters throughout Spain.
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Offline jcorrea-lawyer

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Anfi Beach. Recent rulings in favor of Consumers
« Reply #8 on: October 31, 2015, 21:54:14 »
It is interesting to read old threads, like this, in which we were talking about the illegalities of the floating system well before the Spanish Supreme Court ruled about it... :-)
Bringing legal advice on Timeshare matters throughout Spain.
Lawyer nº 1071 of the Las Palmas Bar Association. Canary Islands.
http://www.correaguimera.com [nofollow]